Professor Marshall Breger participated in an international conference on Shia and Jewish legal reasoning held virtually January 3-4, 2024. The conference is part of a multi-year project sponsored by Indiana University, Bloomingdale, titled The Jewish Shia Legal Dialogue. Scholars from Israel, Canada, the United States, Iran, and Germany participated.

Together with Dr. Marziah Tofighi Darian and Dr. Seyed Masoud Noori, Breger spoke on a panel concerning constitutionalism in Jewish and Shia thought, He presented a paper on the role of Torah Law (halacha) in a Jewish State raising the question of whether, there must be a single unified legal system in such a state – that is to say there must be only one source of law in a halachic legal system-- a fundamental question debated in 20th century jurisprudence, as exemplified by Hans Kelsen in his concept of a Grundnorm. Or whether you can have a form of ‘legal pluralism’ with both religious and secular elements in the legal system. This is a significant issue in medieval political thought, as well, as exemplified by the debate among Christian theologians over the doctrine of the ‘two swords’ in the 13th century.

Breger analyzed a 14th century text by Rabbi Nissin of Gerona (RAN) arguing that a functioning state must include both Torah Law and an autonomous source of authority outside Torah law that he calls the ‘Kings Law’ (drawing on references to that doctrine in Maimonides Mishneh Torah.)

The RAN argued that Torah Law represents ‘ideal’ justice but that one requires, as well, a secular ‘Kings Law’ to maintain social order. Thus, for example, in death penalty situations, Torah Law (halacha) would require two witnesses to the crime and that the suspect be forewarned about the penalty for the crime before the death penalty can be applied. The RAN suggests that to prevent civil disorder only one witness may be required under the ‘Kings Law’.

The notion that there is an autonomous legal space outside Jewish Law has profound implications for the question of whether halacha is considered all-encompassing.

Breger further discussed the interpretation of the ‘Kings Law’ in recent rabbinic sources, specifically the contrasting views of then Chief Rabbi Isaac Herzog and Rabbi Chaim Ozer Grodzinsky near the end of the British moderate. This debate was directly associated with the effort to make post 1948 Israel a state based on halacha (Torah Law.)

This is the second year of the Sharia-Jewish legal dialogue which will culminate in 2025 in a published volume comparing the legal reasoning of Jewish and Sharia legal systems throughout the ages. Breger teaches courses on administrative law and public international law at the Catholic Law.