Prof. Yair Lorberbaum: Looking at Halacha Through Different Prisms

Prof. Yair Lorberbaum is a scholar whose interests lie in the intersection of Halakhah (Jewish law), legal theory, and theology. In his work as a member of the

faculty at the Law School and also as an expert on Halakhah, Jewish thought, and legal theory, he mines the connections between these three fields to shed light on how to better analyze the former." Legal theory and theology are prisms through which to study Halakhah,” Prof. Lorberbaum says, adding that to approach Jewish law from these two dimensions “nurtures the way we can better understand halakhic discourse and reasoning.”


An attorney by training as well as a doctor of philosophy (summa cum laude) from the Hebrew University, Prof. Lorberbaum’s academic and philosophical perspectives make him well-suited to measure the impact of legal theory and theology on Halakhah. Legal theory is how one thinks about a legal system. A legal system talks about specific law or rules—for example, how do you create a contract? The rules tell you what to do and what not to do and whether or not you are liable.


Legal theory, on the other hand, asksconceptual and philosophical questionsabout a legal system—for example, whatis the difference between the letter ofthe law and the spirit of the law (i.e., itsreasons), a legal obligation and a moralobligation. These types of questionsare important because they sometimesimpact on how a law is applied,” he says .Important, too, is the impact of theologyon a legal system. Law — in Prof. Lorberbaum’s case Halakhah — oftenderives from religious and theologicalphilosophical conceptions. As anexample, he cites his book, Zelem Elohim Halakhah ve-Aggadah [In God’s Image: Halakhah and Aggadah], publishedin Hebrew in 2004 and winner of theprestigious Goldstein-Goren Book Awardfor 2007-2010 (the award is bestowedonce every three years to the authorof the best recent book in the field ofthought). In it, he examines how therabbis of the Mishnah and the Talmud (first through fifth centuries C.E) understood Zelem Elokim, the idea thathumanity was created in God’s image. “


"Zelem Elokim is a unique Jewish theological concept that derives from the first chapter of the Bible and became a central theological idea— and also a legal principle—within early rabbinic literature. It is the notion that the Divine Presence resides within humanity,” says Prof. Lorberbaum, who expects the English-language version of his book to be released soon. “I wanted to see how the early rabbis analyzed this idea and applied it in designing parts of Jewish law.


To see the weight they assigned to it within their world view.”  To elucidate their thinking, he turned to several areas of practice in their ancient world at-large, among them the death penalty and procreation—areas within which the concept of Zelem Elokim impacted upon Halakhah. “In the Roman world, for example, executions tended to crush the body as part of the intention to create a spectacle and to achieve deterrence. However, from the Jewish perspective, because of their notion of Divine Presence within humanity, the rabbis wanted executions to keep the body intact. They wanted no harm to come to the body—no impression left on it.”


Because of Zelem Elokim, the rabbis made strangulation, one of the four halakhically acceptable modes of execution, a main method in deathpenalty cases. More important, “in an informal way, they abolished capital punishment altogether, arguing that it harms the Divine image and may be tantamount to deicide ('diminishing the divine image'),” Prof. Lorberbaum explains. In his book he also examines the early rabbis’ perception of human beings as “images” of the Divine—“their view that God is drawn to His image, which is the human body, thus His presence thereof.” While they placed limitations on executions, in their rulings the rabbis strongly emphasized procreation because of the view that it “increases the Divine” image in the world by creating more vehicles in which to embody God’s presence.


The idea of Zelem Elokim is a theological, not legal, idea. And, yet it has many moral, legal, and halachic implications,” he sums up. A native and current resident of Jerusalem, Prof. Lorberbaum joined the Faculty of Law at Bar-Ilan in 1996, where he teaches legal theory at both the graduate and undergraduate levels He has published numerous books and articles on Jewish thought, Jewish law, and political and legal theory, and he is a frequent guest lecturer and visiting professor in the US at institutions including Benjamin N. Cardozo School of Law, University of Pennsylvania, and New York and Yale Universities.