COMPARING

Journal of Semitic Studies JEWISH

XLVIII/1 Spring 2003 AND ISLAMIC LAW
© The University of Manchester 2003. All rights reserved

COMPARING JEWISH AND ISLAMIC LAW

BERNARD S. JACKSON
UNIVERSITY OF MANCHESTER

Abstract
This article reviews Neusner, Sonn and Brockopp’s Comparing Reli-
gions Through Law: Judaism and Islam and Judaism and Islam in Prac-
tice. A Sourcebook. It highlights the methodological choice between
an ‘external’ approach, imposing a clear tertium comparationis, but at
the risk of violating understandings within each tradition, and an ‘in-
ternal’ approach, where the comparison might lack a common ana-
lytical basis. In jurisprudence, a ‘moderate external point of view’ has
come into favour, and this broadly accords with the approach in these
volumes. In this context, the authors’ approach to ‘disproportions’
between the two traditions and their respective ‘unique categories’
(‘enlandisement’, jihad), and their relationship to political history
(viewed primarily internally), is discussed, as is the use of the orality/
literacy spectrum as an external criterion. This leads to consideration
of the nature of authority within the respective systems, and to the
‘religious’ character of the content of the rules.

All involved in comparative studies face a basic methodological di-

lemma: the tension between internal and external points of view. If
we adopt an external point of view in comparing phenomena from
each system, we may fail the test of authenticity; our claims may
turn out to be meaningful in terms of the external criteria we choose
to apply, but may lack meaning for those internal to the system be-
ing described. On the other hand, if we choose to describe each sys-
tem exclusively in terms internal to it, it may turn out that there is
no tertium comparationis. In legal studies, an increasingly popular
mediation between exclusively internal (‘positivist’) approaches
(viewing the legal system only within the terms of its own authority
system) and exclusively external (‘realist’) approaches (viewing the
law in factual rather than normative terms, the product of processes
of cause and effect — whether psychological, sociological, political
or economic) has been the adoption of what is termed a ‘moderate
external point of view’, one which seeks to take full account of the
concepts and argumentation used within the system, but viewed
critically, integrating a variety of external approaches.
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This, broadly, may be viewed as the approach of Neusner and his

colleagues1. They are certainly concerned to give the utmost respect
to the internal point of view. They seek to speak as much as possible
from the texts of the respective traditions; indeed, Neusner is well-
known for his insistence on the identification of the philosophical
voice not simply of different traditions, but of individual texts within
those traditions. In these volumes the Jewish and Islamic scholars
take turns in speaking first on a particular topic or responding to the
agenda of the other. The topics which they address are partly derived
from an external conception of the common processes of legal sys-
tems: ‘the authoritative legal documents of Judaism and Islam’, ‘the
intellectual sources of the law’, ‘the working of the law: institutions’,
and ‘the working of the law: personnel’. In these chapters of Compar-
ing Religions Through Law (henceforth CRL), the picture which
emerges is largely one of similarities — as it is also in the substantive
institutions treated in the companion volume, Judaism and Islam in
Practice (henceforth JIP∞), which covers prayer, fasting, ablutions (un-
der the rubric: ‘relations between believers and God’), betrothal,
marriage, inheritance, divorce, almsgiving and charity (‘relations
amongst the faithful’), and definitions of the community and treat-
ment of the outsider within it (‘relations with outsiders’).
Comparing Religions Through Law proceeds from similarities to
differences, of two types: ‘disproportions’ and ‘unique categories’.
Under ‘disproportions’, the authors ask about centres of emphasis,
topics in the agenda of religious legal systems which are particularly
stressed: they identify as such temple law and sacrifice in Judaism,
slave laws in Islam (in that Islam ‘richly elaborates the law of slavery’
while Jewish sources are said to deal with slavery ‘only in passing’:
‘no tractate or composite of laws finds in the topic of slavery a gen-
erative problematic sufficient to sustain large-scale and fully articu-
lated exposition’ (CRL 160); we are not told why the talmudic minor
tractate Avadim, viewed by its modern editor as one of the ‘first post-
mishnaic compendia regulating specific Jewish practises and usages’
is excluded from consideration).
Under the heading of ‘unique categories’ (where ‘no shared ra-
tionality allows the one side to make sense, in its terms, of the
points of difference with the other,’ — and thus the source of the
1
 Jacob Neusner and Tamara Sonn, Comparing Religions Through Law: Judaism
and Islam (London and New York, Routledge 1999), Pp. xii + 263, ISBN 0-415-
19487-3. Jacob Neusner, Tamara Sonn and Jonathan E. Brockopp, Judaism and
Islam in Practice. A Sourcebook (London and New York, Routledge 2000), Pp. xi +
241, ISBN 0-415-21674-5.

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mutual incomprehension in contemporary politics between Israel

and the Muslim world: CRL 193), they stress the significance of the
land in Judaism — but not simply as a holy place, comparable to
the status accorded by Islam to Mecca, Medina and Jerusalem, or
even as the site of Jewish political redemption (Neusner repeatedly
distances his argument relating to the ‘Land of Israel’ from modern
issues regarding the ‘State of Israel’), but rather in the claim, termed
‘enlandisement’, of an inevitable restoration to the Land of Israel, in
order to re-create there a new (ultimately universal) Eden, the locale
where the dead, after the final judgment and repentance, will be
raised for eternal life, this being the significance of the parallel be-
tween the ten generations from Adam to Noah and the ten genera-
tions from Noah to Abraham (JIP 127). The ‘unique category’ of Is-
lam is identified as jihad, which ‘distinguishes Islam as the religion,
in its own perception, historically destined to reign over all religions’
(CRL 238) through the ‘believers’ responsibility to try to transform
all humanity into a just and godly society’ (CRL 17). It is in such
‘unique categories’, they maintain, that ‘religions find their defini-
tions, their distinctive qualities’ (viii). But even if there is a differ-
ence between ‘Judaic and Islamic communal self-images’ in such
matters (CRL 59), the judgment that this is definitive and distinc-
tive of the respective religions, one might argue, derives from an ex-
ternal viewpoint.
The role of external analysis is accorded greater recognition in the
comparison of notions of sacred time (where the Mishnaic concep-
tion, it is argued, differs also from that of the Bible: CRL 228), as
reflected in the sabbath in Judaism, pilgrimage in Islam:
As on the Judaic Sabbath, the condition achieved is similar to that of
human beings before they fell from divine grace through disobedience
in Eden. They are pure, ready to meet their maker… but the time and
place are not so much the focus of the pilgrimage ritual as is the condi-
tion of purity and demonstration of willingness to do the will of
God… This points up a significant difference between the Judaic sa-
cred time/space of the Sabbath and the Muslim sacred time/place of
the pilgrimage. The sacred state of the former is likened to the sacred
condition in Eden; that, in itself, is the goal. The sacred state in the
Muslim pilgrimage is one of readiness for further action… Carrying
out that will requires ongoing commitment, and renewal of that com-
mitment is the goal of the Hajj. (CRL 189f.)
It is acknowledged that this represents an external comparison which
the adherents of each faith might readily not recognise, even though
they maintain that the pilgrimage and the Sabbath address the same
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questions of the interplay of the life of the faithful with the move-
ment of heavenly bodies.
The methodological dilemma may be posed most directly in rela-
tion to the political history of the two communities. Do the dispro-
portions and unique categories stem from the fact that the classical
sources of Islam derive from a politically dominant, those of Judaism
from a politically servient community? That kind of causal external
question, like that of the actual religious behaviour of adherents to
the two traditions, is acknowledged but avoided: ‘Ours is a study in
the history and comparison of religions viewed as intellectual con-
structions. We give an account of how sages imagine things, not how
people actually conducted themselves’ (CRL 10). Their interest does
extend to ‘the two religions’ respective conceptions of history’, which,
indeed, provide the rationale for the ‘unique categories’ (CRL 192).
However, they are not prepared themselves to indulge in ‘comparison
in more secular terms’, such as ‘geographical determinism, for in-
stance, finding in the common trait of groups of people resident in
the desert — Israel in Sinai, Muhammad and the first Muslims in
Arabia — a reason for the severe monotheism, the intense legalism,
characteristic of both religions. Quite how and why this and kindred
secular explanations accomplish their tasks we do not claim to grasp.
While this-worldly explanations, deriving from historical and social
circumstance, may serve, in our view we do well to consider the con-
figuration of the theology that animates each religion as well’ (CRL
247f.). If anything, they incline to see the causal relationship in the
opposite direction. To the question: ‘what have culture and politics
to do with meeting God in books?’ (CRL 248), the answer is given:
‘Books are artifacts of culture. They require readers, meaning endur-
ing media of formulation and transmission — whether schools and
teachers or inchoate and intangible media of child-raising patterns,
family constructions, implicit expectations, and the other enduring
means by which culture transmits itself. And culture spills over into
politics…’
At root, what is of interest to the authors is the relationship be-
tween the (internal) ‘conceptions of history’ of the two religions and
the religious meaning of their legal institutions. There may well be a
relationship between the external analysis of real history and these
internal (historical, theological, legal) conceptions. But that is be-
yond the present project. Nevertheless, they are prepared to assert: ‘If
we did not know the historical fact that Islam is a world-conquering
religion, with vast successes in its history, and that Judaism is a
world-imagining religion, with a record of defeat to consider, from
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the theological differences we have examined, we might well have

come up with that very characterization of each’ (CRL 192).
There is much here that might support such a thesis. Islam is pre-
sented as more active than Judaism on a number of dimensions —
and not only in the contrast between enlandisement (to be imple-
mented by God) and jihad (which they contrast with the Jewish
hope that God (unaided) will call all humanity to share in their eter-
nal reward: CRL 17, 59, 244): in Judaism, they argue, the time of
Sabbath itself is sacred, while in Islam it is the activities of the believ-
ers that sanctify time; a contrast is drawn ‘between the ahistorical
and highly historical modes of thought and reasoning of Judaic and
Islamic jurisprudents, respectively’ (101f.); Islam is more ready than
Judaism to embrace political power not directly authorised by the
classical sources (CRL 125); whereas the purpose of study of the law
in Judaism is that of encounter with the divine (in that participants
‘gain access to the very mind of God’: CRL 244), so that studying
the law becomes an end in itself, in Islam, study of law is a means
toward the overall end: understanding how to implement the will of
God and furtherance of universal submission to it (CRL 222f.);
whereas in Judaism the past ‘contributes to the present not moments
to remember but experiences to recapitulate, and defines how that
re-experiencing is to take place. In Islam, by contrast, the legal sys-
tem is distinctly oriented toward the future, an ongoing struggle to
spread Islam to all human beings’ (CRL 226).
Of course, the adoption of a ‘moderate external point of view’ be-
comes complicated when we are dealing with a comparative prob-
lem, approached by multiple authors. Some would argue that even a
single author, when presenting the ‘internal point of view’ is neces-
sarily involved in an irreducible process of mediation or translation,
however conscientious the effort to present the tradition in its own
terms and texts. That mediation or translation inevitably involves ex-
ternal elements. In a comparative work like the present, the presenta-
tion of each tradition — separately, by those expert in one system or
the other — must on this argument be affected by the particular ver-
sion of the external point of view adopted by the presenter, even be-
fore we reach the stage of explicit comparison.
The external criterion which is most explicitly invoked for com-
parative purposes is that of the spectrum between orality and literacy,
citing the work of Walter Ong. This reviewer has considerable sym-
pathy with that basic approach (B.S. Jackson, Studies in the Semiotics
of Biblical Law [Sheffield 2000]). This is well-adapted to a ‘moderate
external’ approach, which pays particular attention to the internal
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rationality of systems, here understood in terms of their principles of

self-evidence, category formation and modes of thought. While ac-
knowledging the oral contribution to Islamic law and modes of rea-
soning (‘anecdotal rather than logical, and based on precedents estab-
lished by patriarchs rather than on principles abstracted by reason’
[CRL 62]; reference might be made also to Norman Calder, Studies
in Early Muslim Jurisprudence [Oxford 1993], ch. 7, esp. 166–81),
the authors take the view that Islamic law was more profoundly in-
fluenced by literacy than was Jewish law and accordingly generated a
more abstract and logical form of legal discourse.
While both systems incorporate written and oral material, in Islamic
law the characteristics of literate culture predominate, although, as we
have seen, some oral patterns are still evident. Judaic law, by contrast,
retains the characteristics of oral culture. That is why the debates in the
Talmud can and must be reconstructed, using the hints of the written
record to regain access to the processes of law and reasoning behind a
given debate. Talmudic culture is not only oral, it is personal, in that
the Talmud cannot be merely ‘read’ as a book is read but must be
‘learned’ with a master who himself is a disciple; so we deal with a con-
tinuing tradition that endures in the very persons of the sages, the
masters and the disciples, tracing themselves upward to Sinai, to Mo-
ses, God’s disciple. (CRL 151)
This leads to differences in the qualifications and authority (charis-
matic/rational) of legal scholars in the two traditions:
In oral cultures, authority rests primarily with individuals who may
consult texts but whose authority transcends those texts, while in liter-
ate cultures, authority rests primarily with texts. Thus, in Islam, indi-
viduals derive authority by virtue of their relationship with or mastery
of the texts. In the Judaic culture of the Talmud, by contrast, individu-
als derive authority by reason of mastery of the texts in a relationship
of discipleship. (CRL 151)
Since Judaism lays heavy emphasis upon formulation and transmission
through memory of the oral part of the Torah, gifts of the spirit are to
be anticipated; since Islam rests upon a wholly written tradition, we
should find heavier emphasis upon intellectual ability. (CRL 127)
More highly developed literacy also accounts for greater emphasis on
learning and intellectual prowess as criteria for entering the ranks of
legal scholars in classical Islam than in Judaism. Judaism’s reliance on
charismatic authority is characteristic of oral societies. (CRL 240)
The Jewish judge must be pious as well as learned, and ‘[M]uch of
the later history of normative Judaism spins out the tension between
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learning and charisma, gifts of intellect and gifts of the soul and the
spirit’ (CRL 150).
Yet there are elements in the present account which might them-
selves seem to point in other directions. The Mishnah is said to be
‘worked out through the modes of inquiry of natural history — clas-
sification of genera and species in a hierarchical structure’ (CRL
83f.). But is this not ‘analytical’, in the sense understood by Joseph
Schacht when he wrote:
There are two methods by which legal subject-matter can be brought
into a system, the analytical and the analogical. The analytical method,
the classical example of which is provided by Roman law, leads to the
creation of logically organised legal norms in an ascending order. The
analogical method leads to the organisation of legal subject-matter by
parataxis and association. Islamic law represents this latter type of sys-
tematising in great purity, and this corresponds with the type of think-
ing expressed by the Arabic language. Closely connected with this way
of thinking is the casuistical method, which is indeed one of the most
striking features of traditional Islamic law. All these features are mani-
festations of a typical way of thought which pervades the whole of Is-
lamic law and which has determined the organization of the legal sub-
ject-matter in all its aspects. (J. Schacht and C.E. Bosworth [eds.], The
Legacy of Islam, 2nd edn. [Oxford 1974], 397).
Conversely, analogical reasoning (qiyas) in Islamic law (which ‘would
find instant recognition among the Talmudic sages’, CRL 101) is not
always regarded (externally) as quite so logical or abstract as is here
suggested. Its identification with ‘formal syllogistic reasoning’ (CRL
56) is contentious (see R. Brunschvig, ‘Logic and Law in Classical
Islam’, in Logic in Classical Islamic Culture, G.E. Grünebaum [ed.]
[Wiesbaden 1920], 16–19, esp. 18; Jackson, ‘A Semiotic Perspective
on the Comparison of Analogical Reasoning in Secular and Religious
Legal Systems’, in A. Soeteman [ed.], Pluralism in Law [Dordrecht
2001], 295–325). The more abstract and intellectual character of Is-
lamic law is supported also by the claim that it is more explicit than
the Halakhah in its methodology: ‘Islam’s science of usul al-fiqh ar-
ticulates its hermeneutical principles, including analogical reasoning
and consensus’ (CRL 240), while ‘Judaic law deals more with the
what than the how, with the contents of the law than with the meth-
ods by which those contents are delineated. When we come to ask
about the intellectual sources of Judaism, we have to work back from
the exposition of the law to the principles which guide that exposi-
tion’ (CRL 81). The latter judgment is certainly true of the Mishnah
and Tosefta, from which the major part of the Jewish material in
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these volumes is taken, but would the picture not appear a little dif-
ferent had the halakhic midrashim also been used — not to mention
the Baraita deRabbi Ishmael at the beginning of Sifra, which this re-
viewer has often thought goes further than anything in contempo-
rary Roman law in attempting to systematise its hermeneutical prin-
ciples?
The arguments for orality from the nature of talmudic debates
and the manner of transmission of the tradition also point in more
than one direction. The traditional view of the Tanna (a charismatic
figure?) is that what he recited from memory was a fixed text.
If, moreover, ‘the debates in the Talmud can and must be recon-
structed’, that implies (as can hardly be disputed) that the talmudic
text does not provide verbatim accounts of the oral debates in the
academy. Neusner does not address the arguments of Louis Jacobs
that the talmudic text was a literary construction ab initio. No doubt
even that position would be susceptible in principle to Ong’s insight
that written texts, in the transition from orality to literacy, may bear
traces of ‘oral residue’. My own sense is that we encounter that stage
at a much earlier (biblical) period of the tradition, and indeed that
the Rabbis build upon the considerable literary artifice already em-
ployed in the latter stages of biblical law.
There are, indeed, important elements of charismatic authority in
the rabbinic judge. I have myself argued that adjudication was con-
ceived originally to be the province of the inspired judge rather than
the inspired text (e.g. ‘L’ebraismo come ordinamento giuridico reli-
gioso’, Daimon. Annuario di diritto comparato della religioni 1 [2001],
170–5; English version forthcoming in A. Huxley [ed.], Religion,
Laws and Traditions. Comparative Studies in Religious Law [Rich-
mond]). In Judicial Deviation in Talmudic Law (Chur 1991),
Haninah Ben-Menahem analysed some thirty cases in the Talmud
where a judge made a decision ‘not in accordance with the halakhah’.
Yet however important this may be historically and conceptually, it is
not presented as the norm. A more typical activity, for which
semikhah indeed provided a charismatic form of legitimation, was the
interpretation of the Biblical text.
The effect of these observations, perhaps, is that we should pay
full regard to the qualifications built into the authors’ formulation:
While both systems incorporate written and oral material, in Islamic
law the characteristics of literate culture predominate, although, as we
have seen, some oral patterns are still evident. Judaic law, by contrast,
retains the characteristics of oral culture… (quoted above, emphases
now supplied)
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For my part, any overall evaluation of the two systems in terms of

orality/literacy is premature.
However one may resolve these issues, the choice of this criterion
for comparison is fruitful in directing attention to what may be
termed the semiotics of revelation, on which internal and external
approaches may clearly be brought into relation. Thus, the correla-
tion of Jewish law with orality and Islamic law with literacy is taken
to reflect ‘a deeper theological disagreement on how human beings
know God’s will in words’ (127). For example, we are told that Is-
lamic oral tradition includes descriptions of the circumstances of rev-
elation of various verses of the Qur’an. These amplify verses in order
to allow legal scholars to determine whether or not they have legisla-
tive impact and, if so, to determine the specific precedent involved.
In different terms, the oral tradition supplies the pragmatics of com-
munication of the written texts. Similar attention to both the Bible’s
own account of the revelation of different bodies of rules, and its
amplification in the rabbinic tradition, would be equally rewarding.
Such a conception of the semiotics of revelation, of course, relates
primarily to issues of process rather than content: by what processes
is the will of God made manifest in the two religious traditions?
However, the comparative religion agenda clearly extends also to is-
sues of content. The object of the present volumes is to show how a
religious agenda is made manifest through the details of an ‘intense
legalism, characteristic of both religions’ (CRL 248). In approaching
this issue, a number of (related) methodological issues arise: (a) how
do we decide whether the theological concerns of the law are re-
flected in the choice (and presentation) of issues (themes) found in
the texts or in the detailed rules?; (b) how do we decide to what ex-
tent the detailed rules, which may certainly be interpreted in con-
formity with more abstract theological/philosophical concerns, were
actually designed to express those more abstract theological/philo-
sophical concerns?
Neusner here maintains his claim that the Mishnah is to be read as
philosophy (CLR 24f.), through its (concrete) treatment of issues of
‘the relationship of being to becoming, actual to potential, the prin-
ciples of economics, the politics’. But are the politics ‘religious’, just
because their conceptions of just distribution claim to reflect divine
inspiration? Some of the comparative conclusions in Judaism and Is-
lam in Practice struggle to transcend the level of comparative law,
whose concerns are with utility according to the (contingent) social
values of the society in question. The conclusion to the section on
divorce in Islam (JIP 125), for example, is entirely pragmatic, rather
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 COMPARING JEWISH AND ISLAMIC LAW

than theological. We may not dispute that ‘law frames a theology of

family life that fits well into the larger religious systems set forth by
the respective revelations’ (JIP 59), but it is not clear how the theol-
ogy of family law generates this set of rules rather than any other. In
essence, the problem here is the same as that faced by Maimonides in
deciding to what level of detail one is entitled to descend in seeking
the ta’amei hamitsvot: his conclusion was: ‘The generalities of the
commandments necessarily have a cause and have been given because
of a certain utility; their details are that in regard to which it was said
of the commandments that they were given merely for the sake of
commanding something’ (Guide III.26, trans. Pines, II.508). At
times, Neusner’s position is close to this. Commenting on the open-
ing mishnayot of Ketubot (which deal with the amount of the mar-
riage contract), he observes: ‘Once again, we see the result of a reli-
gion making its statement through law. The issues that arise are those
that concern lawyers, even though the principles derive from religious
convictions about the nature of relationships between the sexes as
God has arranged them. The basic point is that marriage is a public
transaction, a relationship of sanctification, in which God has a
heavy stake as much as the participants’ (JIP 68, emphasis supplied).
I do not think Neusner would dissent from the view that in many
areas his analysis suggests that the theological concerns of the law are
reflected more at the thematic level than that of detailed regulation.
Space precludes comment on the many stimulating observations
found in these volumes on more specific comparative issues. While
the close relationship between law and morality in religious systems
of law is often noted, this is rightly related here to the modalities
used by the systems: ‘Both systems include as well in their discussion
acts that are not necessarily enforceable but are highly recommended
as pleasing to God, and others that are not necessarily punishable but
are discouraged’ (CRL 241). The fivefold system of Islam (which
adds the recommended and discouraged to the three recognised in
Western systems: the prohibited, permitted and required) is further
analysed in terms of the respective roles of law courts and muhtasibs
(121). The texts on accusations of adultery in the two systems (the
rabbinic interpretation of the sotah procedure and the ‘Affair of the
Lie’ in Malik’s al-Muwatta; the apocryphal story of Susanna might
usefully be added) generate observations regarding the form of, and
conditions for, divine intervention in the adjudicatory process, and
the nature of divine justice that results. Due attention is paid to the
significance of the literary characteristics of the material. For exam-
ple, laws on marriage are grouped together before laws on business
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 COMPARING JEWISH AND ISLAMIC LAW

transactions and after laws on loans in the classical shari’ah hand-

books, and this is taken (JIP 85) to indicate that marriage is not a
sacrament, over which a religious authority must preside. Much the
same could have been said in relation to Jewish marriage, deriving
from the basic analogy between modes of kiddushin and the forms of
kinyan for certain categories of property (and reinforced by the
Mishnaic expression: ha’ishah niknit...). An argument is advanced
that the wife has a more than passive role in the Jewish divorce proc-
ess (though not extending to any right to inspect the get in advance
of delivery and object to it if she feels it is not valid), reflecting her
responsibility to ensure that children of any subsequent union into
which she may enter will not be mamzerim (JIP 116).
The wealth of material here presented might also be used for pur-
poses different from those of the present project, such as the histori-
cal relations between the two traditions. A notable example is the fol-
lowing from Malik’s al-Muwatta (JIP 118): ‘… If two unbelievers
become Muslim, they are confirmed in their marriage, but if only
one becomes a Muslim, then this is annulment without divorce. If
she is the one who became a Muslim, then he has the right of mar-
riage should he become a Muslim within her waiting period…’,
which might well contribute to the discussion of the background
against which the Babylonian Geonim enacted the ‘takkanat
hamoredet’, coercing a recalcitrant husband (immediately) to divorce
a wife who claimed he was repulsive to her: an anonymous thir-
teenth-century responsum claims that this was done because the
talmudic 12-month waiting period prompted women to resort to
‘bad ends (‫)לתרבות רעה‬, either prostitution or apostasy (‫בין בזנות בין‬
‫( ’)בשמד‬see S. Riskin, Women and Jewish Divorce [Hoboken, NJ
1989], 52f.).
Again, though the material is not selected or arranged in order to
facilitate the problem-based approach common in comparative law,
there are sources which, with suitable supplementation, could well
contribute to teaching and research of this kind. We have, for exam-
ple, the rule of the Qur’an prohibiting immediate remarriage of a di-
vorced couple, and requiring an intermediate marriage (Qur’an,
2:225–32, quoted at JIP 118). A comment on this by al-Qayrawani
is quoted (JIP 120) prohibiting an intervening marriage of conven-
ience, in order to allow remarriage between the original couple, since
this would defeat the object of the basic law, to prevent a man from
frivolously marrying and divorcing the same woman. Yet the Bible
(Deut. 24:1–4) provides exactly the converse rule: a divorced couple
may (by implication) immediately remarry; it is only when there has
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been an intermediate marriage (of the wife) that this is prohibited. It

would be a nice exercise to consider what combination of social and
theological factors may explain this divergence.
Inheritance is another such area. There is ample material here for
comparison of the treatment of female heirs — excluded, in Jewish
law, if there are males in the same class; awarded a half the share of
male heirs in Islamic law. In both systems, measures are taken to
mitigate this gender discrimination and ensure that daughters are not
left without provision. The Mishnaic priority of the daughters’ right
of maintenance (M.B.B. 9:1) is quoted (JIP 103): ‘He who died and
left sons and daughters… [If ] the estate is small the daughters are
supported, and sons go begging at [people’s] doors’ — but without
the concluding hint of criticism: ‘Admon says: [The son may say:]
‘Must I suffer loss because I am a male?’ Rabban Gamaliel said: I
approve the words of Admon.’ In Islamic law, too, the result may be
‘the lion’s share of the estate going to the women of the family’ (JIP
106). Other issues require more supplementation. The exact nature
of the shared control (JIP 102) between father and sons where the
father executes a matanat bari, using the expression ‘From to-day
(mehayom) and after my death’ (M.B.B. 8:7; Neusner translates: ‘He
who writes over his property to his son [to take effect] after his
death’) has attracted the attention of legal historians and comparative
lawyers, notably Yaron, Gifts in Contemplation of Death (Oxford
1960). The treatment of the Islamic law of inheritance covers death
bed dispositions (JIP 112), but there is no equivalent material on the
shekhiv mera, which first appears in the tannaitic sources (M.B.B.
9:6–7 and the Tosefta passages discussed by Yaron, Gifts, ch.VII) and
achieves its maturity in the Talmud.
There is also valuable material here which may assist students of
one system to develop hypotheses from the conceptual development
of the other. Introducing consensus (ijma’∞), we are told (CRL 62):
‘According to hadith, judges were not to interfere with a people’s cus-
tomary practice provided it was consistent with Islamic law. Never-
theless, there is no place for it within the theories articulated by the
founders of Islamic law. With the development of legal theory, ijma’
as local practice was transformed from a de facto material source of
Islamic law to a formal intellectual source. It became a process by
which legal decisions were reached.’ The gradual emergence of a doc-
trine of consensus in the halakhah is something of a puzzle. Some,
indeed, have seen it as a reflection of the Islamic ijma’. On this ac-
count we might be more inclined to consider its internal relationship
to minhag and kabbalah. Conversely, the relationship between hala-
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 COMPARING JEWISH AND ISLAMIC LAW

khah and ma’aseh might contribute to the understanding of that be-

tween shari’a and fiqh (CRL 55).
Comparing religions through law is no easy task, but well worth
the effort.

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