From Maimonides to Napoleon: the True and the Normative

Julien Taieb

doi:10.2202/1934-2640.1227

In this paper I will pursue a reflection on the question of the conflicts of laws between religious and civil law in France. After having introduced and criticized the process of normative decline of Jewish law – the Halakha – I will propose therapies for such a process, both from a normative and non-normative perspective. My inspiration derives from the Talmudic idea of separation between truth and normativity. Indeed, Hillel often prevailed when he and Shammaï would disagree on the meaning of the Torah but both their interpretations were nonetheless "the words of the living God" says the Talmud. A normative therapy: to defend a casuistic approach to resolve conflicts of laws between religious and civil law rather than the systematic approach set up by the 2004 statute. A non-normative therapy: to promote an epistemological understanding of the confluence between Halakha and French law through the theme of codification. A comparison between Maimonides' Mishne Torah and the Napoleonic Civil Code reveals several converging features such as the incapacity of the codes to put an end to controversy. Such commonality could help Jews exiled in France to overcome conflicts of laws between French and Jewish laws and to live an appeased conflict. Because the experience of Galut (exile) is too complex to be reduced to the sole words of the judge, it appears sound to separate the true from the normative. Only on the basis of this predicate, will Jews exiled in France be able to avoid a hierarchization of Jewish and French law in case of conflict and the resulting ontological conflicts between their inner selves.

From Maimonides to Napoleon: the True and the Normative

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