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Chapter 1 is devoted to a brief description of the major milestones of contemporary and Jewish/talmudic torts. This description serves as an initial presentation of the place of torts in the private arena of law vis-à-vis other fields. We start with a presentation of Jewish law of torts in general and in Maimonides’ writings. There were attempts to base tort liability in the talmudic legal tradition solely on a fault-based liability theory of peshiah (negligence), but these attempts encountered difficulties. We further present the goals of torts according to contemporary tort theories. We introduce monistic vs. pluralistic approaches, those approaches that focus only on one goal (such as optimal deterrence, distributive justice, and corrective justice) as opposed to mixed-pluralistic approaches that integrate two or more goals. Next, we move on to deal with the standard of care and present the full range of tort liability regimes, starting from strict liability and ending in fault-based liability. We also present the book’s method. The interdisciplinary character of the book requires the use of various methods, such as those of comparative law, legal history, law and religion, Judaic studies, legal theory, and economic analysis of law.
Chapter 7 attempts to define accurately the standard of care adopted by Maimonides in his Code with respect to four categories of damage: (1) damage caused by a person to the property of another, (2) damage caused by a person who injures another, (3) damage caused by property, and (4) murder. In relation to each of these four categories, Maimonides proposed a standard of care that lies on the scale between fault, negligence, and strict liability. A careful examination of Maimonides’ writings reveals that he favored different liability regimes for different categories of damage. We present a scheme that illustrates Maimonides’ differential model and explains its rationale with respect to the hierarchy in the different standards of care applied in different cases. We also describe the historical background, circumstances, and nature of the tortfeasors in Maimonides’ time and in the contemporary era. This is essential for an understanding of the differential liability model in itself and as compared to contemporary models. Maimonides’ tort theory, we argue, is based upon a fundamental distinction between two questions: (1) upon whom should tort liability be imposed and (2) what is the standard of care that should be imposed in each case.
After raising questions regarding the problematic texts in the Code in Chapter 2, and presenting consequentialist – and not only deontological – objectives of Maimonides’ tort theory as the two main objectives of tort law, as seen in Chapters 3–5, Chapter 6 revisits some of the problematic texts in the Code. In this chapter we revisit some of the problematic texts in the Code and attempted to cast light on them in view of the consequentialist objective of tort law elucidated in the Guide. In this way, we try to resolve some of the difficulties that were raised in Chapter 2. At the same time, we clearly show that the Guide and the Code do not always speak with one voice. Sometimes, a general rationalization offered in the Guide in relation to a particular ruling, such as that relating to the tam ox, cannot be reconciled with the details of the ruling as specified in the Code. Revisiting some problematic texts will serve as leverage for further understanding the Maimonidean theory in the .
Maimonides lived in Spain and Egypt in the twelfth century, and is perhaps the most widely studied figure in Jewish history. This book presents, for the first time, Maimonides' complete tort theory and how it compares with other tort theories both in the Jewish world and beyond. Drawing on sources old and new as well as religious and secular, Maimonides and Contemporary Tort Theory offers fresh interdisciplinary perspectives on important moral, consequentialist, economic, and religious issues that will be of interest to both religious and secular scholars. The authors mention several surprising points of similarity between certain elements of theories recently formulated by North American scholars and the Maimonidean theory. Alongside these similarities significant differences are also highlighted, some of them deriving from conceptual-jurisprudential differences and some from the difference between religious law and secular-liberal law.
Chapter 5 will examine consequentialist elements in Maimonides’ tort theory, based primarily on what he wrote in the Guide. We will see that although Maimonides’ theory is not consequentialist in the full sense of this term, several significant elements of consequentialism are found in his theory, notwithstanding the concurrent presence of other important elements. We also saw that Maimonides’ general approach to the objectives of tort law, mainly as emerges from the Guide, reveals an extremely important consequentialist objective – prevention of acts causing damage and deterrence. After a discussion of this important aspect of Maimonides’ tort theory, we will proceed to a comparative examination of the similarities and the differences between this theory and the modern theories of law and economics regarding torts, including the theories of some of the fathers of the economic analysis of law in general and of tort law in particular – Calabresi and Posner. We also present a certain proximity between the consequentialist approach of Maimonides and the modern approaches to punitive damages. We saw a certain similarity between his approach and the economic multiplier approach, but in our view, there is also similarity to the moral idea of societal redress in extracompensatory damages.
Chapter 3 introduces the foundations of the Maimonidean theory: the scope of tort law, its connection to criminal law, the classification of the different categories of tort law, and the various objectives underlying each of these categories. We argue that understanding Maimonides’s tort theory and providing a complete view of his theory requires three things: An awareness that Maimonides’ theory incorporates various goals and considerations that operate in concert; the understanding that Maimonides introduced different goals for different categories of damage; and a focus both on what Maimonides wrote in his Code and in the Guide and in his other works such as Commentary to the Mishnah and Responsa. In each category of damage one goal (or more) is (or are) more dominant than the others. A fundamental division into different types of torts emerges from the classification of the Book of Torts in the Code: The basic distinction between damages that are caused by a person’s property and damages that are caused by the person himself; the distinction between a person who causes physical injury to another and a person who damages the property of another; and the distinction between regular damage to nuisance and damages to neighbors.
We address the deontological, philosophical, pedagogical and religious foundations of Maimonides’ tort theory. Maimonides regards removing the wrong as an important aim of tort law, alongside other aims, which are directed at the meta-aim of the “welfare of the body.” We looked at the similarities and the differences between this aim and the theories of prominent modern corrective justice theories, such as those presented by Weinrib. Maimonides emphasizes educational, punitive, religious (prohibition against causing damage) and social aspects that shape this aim of “removing the wrong” in particular, and tort law in general. Therefore, the application of tort law and the conception of corrective justice is wider according to Maimonides’ approach than according to narrow conceptions of corrective justice that place the emphasis on the correlative framework of the damager/victim. Tort law, according to Maimonides, is designed not only to restore the status quo ante, but to repair the qualities of the damager, to shape him as a person who contributes to a society which dutifully observes the religious precepts and is careful not to cause damage to the property and to the body of another. Moreover, Maimonides incorporates distributive considerations into his theory, particularly on the subject of compensation.
In Chapter 2 we will present the difficulties facing those who seek to understand Maimonides’ tort theory as it appears in the Code alone, and according to the common interpretation (the “yeshivah reading”). Several contemporary scholars, as well as rabbis from the Lithuanian yeshivot, identified a different element as an alternative to the element of peshiah, i.e., the element of ownership, and some say ownership and strict liability, by virtue of which liability is imposed for damage caused by a person’s property. We will examine this approach critically and conclude that it does not accurately reflect Maimonides’ position, for it raises serious difficulties, both conceptual-principled and exegetical. We will point to a trend of new explanations of the Jewish sources through the speculum of the common tort theories in the twentieth century in the world of Jewish law. Chapter 2 will leave us with many open questions, which will be answered in the subsequent chapters. The book contains three main parts: (a) Questions; (b) Answers; and (c) Dialogue. Chapter 2 presents the questions to be dealt with in the book. Chapters 3–6 supply answers, and Chapters 7–8 offer a dialogue between Maimonides and various contemporary tort theories.
Chapter 8 draws some cautious lessons from a contemporary analysis of torts for Maimonides’ theory of torts and vice versa. We offer a full conceptual description of the Maimonidean theory, based on the previous chapters, and also characterize Maimonides as a pluralistic-differential scholar. We show that, as opposed to contemporary approaches to torts, which emphasize law and economics and corrective justice, Maimonides’ approach should be characterized as pluralistic and not monistic. After showing how contemporary approaches shed light on Maimonides’ approach, we can move in the opposite direction; that is, we can draw some careful – but important – lessons from the Maimonidean theory for contemporary tort law. We suggest one possible way of learning lessons from Maimonides’ theory for contemporary law, which may help enrich the current tort law discourse. The argument that Maimonides is a true pluralist enables us to draw a careful comparison between Maimonidean and contemporary pluralistic approaches to tort law, such as those of Glanville Williams, Fleming James Jr., Izhak Englard, Gary Schwartz, Mark Geistfeld, Christopher Robinette, Steven Burton, John Goldberg, and Benjamin Zipursky. This comparison reveals differences among the approaches, as well as advantages and disadvantages of each approach.
Maimonides – Rabbi Moses ben Maimon – was born in Spain at 1135 and died in Egypt in 1204. He was known in the Jewish tradition as the “Great Eagle” due to his eminence in so many fields: as a jurist, philosopher, scholar, physician and theologian. Maimonides is perhaps the best-known and most widely studied figure in Jewish history from medieval times until the present day.