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From Professors Sinai and Shmueli: "From the point of view of the theory of tort law it may be assumed, given the considerable differences that exist between the main economic analysis of law and the conventional approach to tort law in Jewish law, that Calabresi and Maimonides present entirely different positions regarding the elements of tort liability. But the analysis of the “dialogue” between Calabresi and Maimonides produces a better understanding of each of their theories, illuminating unappreciated aspects in the work of both. At the same time, it also yields results that most likely were not known to date. Surprisingly, a careful comparison of their writings reveals striking similarities between the basic tort theories of the two. Importantly, there are also crucial differences between the tort theories of the two. These differences follow from the different and at times conflicting positions of Jewish law, on one hand, and the modern law and economics on the other regarding tort law in particular and in relation to law, morality, and justice in general. Furthermore, understanding Maimonides’s approach in light of Calabresi’s approach can provide us with solid and convincing theoretical insights that clarify what is exactly the basis of his approach for tort liability, and why Maimonides deviated from the common fault-based theory that was dominant in Talmudic and post-Talmudic sources. We present the main difference between the two approaches and attempt to explain it based on the historical background against which the two scholars developed their theories and on the circumstances of the dominant cases. Maimonides addressed the traditional situations of a single tortfeasor who is not insured (the institution of insurance did not exist at the time). There was no shortage of manufacturers, as almost everyone traded or produced something, but the phenomenon of large-scale manufacturing organizations, economically strong and in control, loss-distributors and carrying insurance was not known. Although these conditions were fertile ground for the development of objective of corrective justice, Maimonides did not hesitate to base his solutions, even under these conditions, on the aspect of damage prevention and deterrence, at the same time mixing in considerations of morality. His approach, however, was greatly influenced by the prevailing conditions of the period."
Sponsored by the Program in Law and Public Affairs, and the Program in Judaic Studies, Ronald O. Perelman Institute for Judaic Studies