Thanks to Alon Harel who urged me to write this paper and to Gertald Bildstein who commented on a previous draft of this paper.

1. A brief analysis of this view in the writings of Austin, Bentham and Holmes can be found in Riga, P.J., “The Nature and Obligation of Law: Relationship of Power and Violence to Law” (1983) 24 Texas L. J. 149.Google Scholar

2. In fact, the symbiotic approach is based on a neutralized notion of violence and so differs from the antithetical approach. In other words: while the antithetical approach is compatible and coherent with the definition of violence as inappropriate aggression, and therefore views violence as a condemned act, the symbiotic approach neutralizes its normative sense and treats it in descriptive terms. Basically, neutralizing violence enables its legitimization. Hence the two approaches essentially differ in their fundamental views on the question of whether violence as a phenomenon carries normative sense at all.

3. Benjamin, W., “Critique of Violence” in Bullock, M. & Jennings, M.W., eds., Selected Writings, 1913-1926, vol. 1 (Cambridge, MA: The Belknap Press of Harvard University Press, 1996) at 236-53Google Scholar.

4. Derrida, J., “Force of Law: The ‘Mystical Foundation of Authority’” in Cornell, D., Rosenfeld, M. & Carlson, D.G., eds., Deconstruction and the Possibility of Justice (New York: Routledge, 1992) 13.Google Scholar Derrida’s remarkable essay enlightens three fundamental features of the law—its universality (the law always tends towards universality), the essentially of rights (the law operates to maintain, and thus is inseparable from, rights) and its concern with self-preservation (the law is bound up with the silence of its own force, and is self-preserving). For a good reflection, out of many others, on Derrida’s claims see Buonamano, R., “The Economy of Violence: Derrida on Law and Justice” (1998) 11:2 Ratio Juris 168.CrossRefGoogle Scholar

5. Cover, R., “Violence and the Word” (1986) 95:8 Yale L. J. 1601 CrossRefGoogle Scholar. To this form of thought we should also add Austin Sarat’s approach, see Sarat, A. & Kearns, TR., “A Journey Through Forgetting: Toward a Jurisprudence of Violence” in Sarat, & Kearns, , eds., The Fate of Law (Ann Arbor: University of Michigan Press, 1991)CrossRefGoogle Scholar. An interesting point of view on this relationship is ex Pressed through the claim that ‘law is simply one of many mechanisms human beings have developed to give moral meaning to violence’, see Brooks, R.E., “The New Imperialism: Violence, Norms, and the ‘Rule of Law’” (2003) 101:7 Mich. L. Rev. 2275.CrossRefGoogle Scholar

6. The original meaning of the Aramaic root a.l.m is: strong, aggressive and big. According to Natan ben Yehiel (11th century Jewish lexigraph) there is a semantic connection between the Aramaic verb and the Arabic root a.l.m which in its second and forth derived stems means to cause pain, suffer, agony etc. (Arukh Completum, Vienna: Menorah publication, 1926 s.v. alm, vol 1:97 (H)). The use of this term in Talmudic literature is widespread and alongside the physical meaning it also denotes a normative status, of the Mishnah (Babylonian Talmud Sabbath 12a), court (Babylonian Talmud Gittin, 36b) and more. However the formula kol dea’lim gavar is manifesting the possessive right achieved by the aggression of the stronger.

7. The ordeal seems to have been confined to Germanic legal practice. The ordeal is in fact a test employed under fixed conditions to discover the will of God in matters involving the innocence or guilt of human beings. Ordeals can be divided into three types according to their aims: (1) natural, as when arrows are shot to determine which road to take (Ezekiel 21:21), as when priests are chosen by lot in Rome or in Tibet, as when the choice of animals to be sacrificed in the Temple is determined (Mishnah Tamid 4:3-5:1), or as when settlers want to know who is to rule etc; (2) truth of property or ownership claim; (3) guilt or innocence when a charge is preferred against someone. This last type could be perceived as unilateral procedure when fire, water swallowing, lots, etc. are used on a suspected violator and multilateral procedure when battle decides the issue. For more on this, see Bloomfield, Morton W. “Beowulf, Byrhtnoth, and the Judgment of God: Trial by Combat in Anglo-Saxon England” (1969) 44:4 Speculum Speculum.CrossRefGoogle Scholar

8. The Romans saw the duel as a barbaric habit lacking any legal value. In contrast, there are many indications that the duel was practiced as legal procedure in antiquity. The appearance of the duel as an accepted legal procedure in Europe was due to the influence of Germanic tribes. Following them, the duel became a common legal practice all over Europe. An extensive legislation of the duel’s rules is found in the orders of Lewis the Pious, the Frankish King from 819 A.D. Using this fact and other sources, we can estimate that during the ninth century this practice was widespread all over Europe. From the Germans this practice was transmitted to France, where it flourished mainly during the period of the customary law—the twelfth century—and the knightly culture developed there. The Frankish kings saw there a means for limiting the judicial power of the independent vassals. Therefore, it was a form of legal procedure open to every free man, and in some cases, such under the kingship of Louis the Sixth, the right to participate in duels was bestowed also for slaves.

9. See Morris, C., “Judicium Dei: The Social and Political Significance of the Ordeal in the Eleventh Century” (1975) 12 Stud. Church Hist. 95 Google Scholar; Brown, P., “Society and the Supernatural: A Medieval Change” (1975) 104 Daedalus 133.Google Scholar

10. The idea that God is revealed thorough violence is deeply rooted in the theology of the Bible where God is described as warrior which reveals its power in the battlefield. This idea of course stands on the basis of Jewish and Christian apocalypses that visualize the day of the Lord as a harsh battle and therefore describe the expected revelation as ultimate violence. On the Biblical image of God as a warrior, see Miller, P.D., “God the Warrior: A Problem in Biblical Interpretation Apologetics” (1993) 61 Semeia 135 Google Scholar; Brettler, M., “Images of YHWH the warrior in the Psalms” (1965) 19 Interpretation 39 Google Scholar. On the biblical idea of the ‘Day of the Lord’, see Rad, G. von, “The Origin of the Concept of the ‘Day of Y’” (1959) 4 J. Semitic Stud. 97 Google Scholar. Idem, Holy War in Ancient Israel, trans. and ed. by Dawn, M.J. (Grand Rapids, MI: Eerdmans Pub., 1991)Google Scholar. A different opinion is suggested by Weiss, see Weiss, M., “The Origin of the ‘Day of the Lord’—Reconsideration” (1966) 37 Hebrew Union College Annual 29.Google Scholar

11. Since the ninth century the church decisively objected the duel as legal procedure and rejected referring to it. Nevertheless despite the church’s voice, which was in fact officially cancelled in most of the West-Latin countries, the duel continued to be practiced in Europe until the sixteenth century. Since then the duel was shifted from a legal procedure to a social institution that supplies honor, namely an institution used to recover dishonor or to refute accusation in cowardice. See Baldick, R., The Duel: A History of Dueling (New York: Clarkson Potter, 1965)Google Scholar; Kiernan, VG., The Duel in European History: Honour and the Reign of Aristocracy (Oxford: Oxford University Press, 1988).Google Scholar

12. Allen, D.W. & Reed, C.G., “The Duel of Honor: Screening For Unobservable Social Capital” (2006) 8 Am L. & Econ. Rev. 81.CrossRefGoogle Scholar

13. This idea is quite early and it appears already in Tannaic sayings, ‘R. Joshua said: There are four acts for which the offender is exempt from humanly judgment but liable to the heavenly judgment. They are these—(1) To break down a fence in front of a neighbor’s animal [so that it gets out and does damage]; (2) To bend over a neighbor’s standing corn in front of a fire; (3) To hire false witnesses to give evidence; and (4) To know of evidence in favor of another and not to testify on his behalf’ (Babylonian Talmud Baba Kama 55b). Later in the Talmud, we find additional examples such as ‘… a case of a man who does work with Water of Purification or with the [Red] Heifer of Purification … the case of one who placed deadly poison before the animal of a neighbor … the case of one who entrusts fire to a deaf-mute, an idiot or minor [and damage results] … the case of the man who gives his fellow a fright … the case of the man who, when his pitcher has broken on public ground does not remove the potsherds, who, when his camel falls does not raise it … the Sages hold that he is exempt from humanly judgment but liable to the heavenly judgment’ (Babylonian Talmud Baba Kama 56a).

14. See Kirschenbaum, A., Equity in Jewish Law, Formalism and Flexibility in Jewish Civil Law (New Jersey: Ktav Publication House Inc., 1991)Google Scholar; Halbertal, M., Interpretative Revolutions in the Making, Values as Interpretative Considerations in Midrashei Halakhah (Jerusalem: Magnes Press, 1997) at 30–33 (H).Google Scholar

15. It should be noted the medieval Halakhic sources oriented in Germany mention duel and ordeal as widespread practices in the local legal systems differing form Jewish legal practices. For example, Rabbeinu Gershom Me’or HaGolah (960?-1028) in one of his Halakhic writings presents his solution to suspicious stolen property as against the solutions suggested in the local legal systems: ‘… and every non-Jewish is suspicious in that lost property which didn’t returned [that object, should] put his hand in the fire according to the local rules of the gentiles. And on Reuben’s property they made time for dueling.…’ ( Mueller, Joel, Réponses par de Célèbres Rabins Français et Lorrains (Vienne: 1881) # 97 at 54-55).Google Scholar

16. On the use of ordeal in the medieval Rabbinic tradition see Eidelberg, S., “Trial by Ordeal in Medieval Jewish History: Law, Customs and Attitudes” (1978-79) 46-47 Proceedings Am. Academy for Jewish Research 105.Google Scholar

17. Some readings of this ex Pression tend to blur the meaning of violence carried in the term ‘a’lim ‘. Therefore they prefer the following translations: ‘the stronger one prevails’ or ‘the stronger shall prevail’. However, the reasonable semantic connection to the Arabic meaning (see supra note 6) supports our translation that also carries the meaning of violence.

18. Maimonides describes this norm in term of being privileged. See Maimonidean Code, Neighbors 3:10.

19. Babylonian Talmud Baba Bathrah, 34b.

20. Ibid.

21. Textually this ruling follows a series of rulings dealing with various regulations regarding the prosperity of society or fixing public norms such as ‘for the order of the world’ (Tikon haA’olam. Lit. Correcting the world), see The Mishnah, trans. Neusner, J. (New Haven and London: Yale University Press, 1988)Google Scholar; Gittin, Chapter 4 at 472-74; 5:3, at 474; ‘for the good order of alter’ at 475, and more.

22. Babylonian Talmud Gittin, 60b.

23. I deal with those questions elsewhere. Apparently the position attributed to R. Huna b. Tahalifa reflects late editorial rationale which prefer to bestow the Sages’ disputations a canonical status, and therefore has the interest of preserving the disputation and not deciding on one side or the other. Yet we should also note that R. Huna b. Tahalifa’s pattern generally is not followed apart from very few exceptions. One unique example can be seen in on of the writings of Rabbi Meir b. Barukh of Rottenberg (1215-1293), in which he avoids determining the dispute between his Rabbinical authorities and therefore he ruled KDG—’… since it is unclear for us whether the right ruling is according to Rashi’ (Solomon b. Isaac; 1040-1105) or Rabbenu Tam (Jacob b. Meir; 1100-1171) ‘… we say KDG and if partners are stronger in holding the eastern [side] they obtain possession’ (in Mordekhai on Babylonian Talmud Baba Bathrah, ch. 507 at 86a [on the Alfasi’s pages].

24. See The Mishnah, trans. by Neusner, J. (New Haven, CT: Yale University Press, 1988)Google Scholar; Baba Metzia 1:1 at 528-29. Medieval Halakhic authorities frequently quote R. Hannael’s saying. The above quotations is taken from commentary on the Talmud attributed to Moshe, R. Nachman, b. (1194-1270), see Hidushei Ramban on the Talmud (Jerusalem: Regensberg Institute, 2002) at 1 (H).Google Scholar

25. Heb. bemakom shyad shneihem shavah, lit. = wherein their physical possession is initially equal.

26. See haRid, Piskei, The Rulings of R. Isaiah the Elder of Trani, Baba Metzia (Jerusalem: Institute for the Complete Israel Talmud, 1982) at 3 Google Scholar (H).

27. As a matter of fact, his response of reinterpreting this Talmudic norm in a manner that weakens the moral problematic is indeed typical of post-Talmudic scholars who are trying to resolve problematic aspects of the Talmudic regulations.

28. Piskei ha-Rosh on Babylonian Talmud Baba Bathrah, ch. 3:22 at 368. His position is appearing elsewhere in his writing and widely quoted in medieval Halakhic literature.

29. On the normative status of takkanah see Elon, M., Jewish Law: History, Sources, Principles, vol. II, trans. by Auerbach, B. & Sykes, M.J. (Philadelphia, PA: The Jewish Publication Society, 1994) at 477.Google Scholar

30. A parallel stance is founded in a contemporary Halakhic authority, R. Menachem b. Shlomo HaMeiri (1249-1315): And you have learned in your own way that whenever two are arguing about one matter—one says: ‘It is mine’ and the other says: ‘It is mine’; one says: ‘It belonged to my fathers’ and the other says: ‘It belonged to my fathers’—and it cannot be resolved, it is not in the possession of either party, and the thing is not handled by court, or by any person; It is not under the jurisdiction [of the court], and the one who is more violent prevails. After one of them has overcome the other, [the court] will consider the claims for expropriating it from him.’ (Beit HaBechirah to Baba Bathra at 34b).

31. Ephraim, R. Shlomo (Luntshitz, 1550-1604), Yakar, Keli [A Commentary on the Pentateuch] in Mikrauth Geduloth (Jerusalem: Pardes Publishers, 1955) at 5.Google Scholar

32. Paraphrase based on Psalm 58:11.

33. Paraphrase based on Proverbs 28:24.

34. Indeed this is a fascinating example of theological and literary critique of the law that uses the narrative to undermine the legal approach altogether. The violent possibility offered by the law and which ex Pressed by KDG are seen as enormously dangerous. The implicit recognition that there are cases that may not be susceptible to judicial resolution is tantamount to admitting that there are times when the divine judge is absent. (There is no law and no Judge and therefore the one who is more violent prevails.)

35. Aquinas, St. Thomas, Summa Theologica, II. 91. 1-5Google Scholar. On the Scholastic and Christian background of Albo, see Guttmann, J., “The Study of the Sources of Sefer Ha-’Ikkarim” in Religion and Knowledge: Essays and Lectures (Jerusalem: Magnes Press, 1955) 169 (H)Google Scholar.

36. On Albo’s using the term religion in the meaning of a legal system, see Lerner, R., “Natural Law in Albo’s Book of Roots” in Cropsey, J., ed., Ancient and Moderns (New York: Basic Books, 1964) at 132-47Google Scholar; Melamed, A. “Did Ibn Wakar preceded Albo in Classifying the Laws?” (1989) 1 Tura 270 (H).Google Scholar

37. ‘There are three kinds of law, natural, positive and divine. Natural law is the same among all peoples, at all times, and in all places. Positive is a law ordered by a wise man or men to suit the place and the time and the nature of the persons who are to be controlled by it, like the laws and statutes enacted in certain countries among the ancient idolaters, or those who worship God as human reason dictates without any divine revelation. Divine law is one that is ordered by God through a prophet, like Adam or Noah, or like the custom or law which Abraham taught men, instructing them to worship God and circumcising them by the command of God, or one that is ordered by God through a messenger whom He sends and through whom He gives a law, like the Law of Moses.’ ( Albo, Joseph, Sefer Ha-’Ikkarim (Book of Principles), trans. by I. Husik (Philadelphia, PA: The Jewish Publication Society of America, 1930), Article one, ch. 7 at 78–79.Google Scholar)

38. ‘The purpose of natural law is to re Press wrong, to promote right, in order that men may keep away from theft, robbery and murder, that society may be able to exist among men and everyone be safe from wrongdoers and op Pressor’ ibid.

39. ‘The purpose of the positive law is to sup Press what is unbecoming and to promote what is becoming, that men may keep away from indecent according to human opinion. Herein lies its advantage over natural law, for positive law also controls human conduct and arranges their affairs with a view to the improvement of human society, even as natural law’ ibid.

40. ‘The purpose of divine law is to guide men to obtain true happiness, which is spiritual happiness and immortality. It shows them the way they must follow to obtain it, teaches them the true good that they may take pains to secure it, shows them also real evil that may guard against it, and trains them to abandon imaginary happiness so that they may not desire it and not feel its loss. And in addition it also lays down the rules of right that the political community may be ordered in a proper manner, so that the bad order of their social life may not prevent them from attaining true happiness, which is the ultimate end of the human race to which they are destined by God. Divine law is therefore superior to positive law’ ibid.

41. Albo, Joseph, Sefer Ha-’Ikkarim (Book of Principles), trans. by Husik, I. (Philadelphia, PA: The Jewish Publication Society of America, 1930), Article three, ch. 15 at 134–35.Google Scholar

42. It is not really clear whether he sees an essential linkage between violence as a norm and the agrarian society. Nevertheless, it is plausible that such a linkage is reflected in his view of the feudal structure in which he is willing to locate in the tri-functional typology he develops. On the other hand perhaps this linkage is a consequence of his hermeneutical move that connects this structure to Adams’ three sons and mainly to the tension between Cain and Abel.

43. Albo’s distinction between violence and political power definitely recalls the distinction made by Arendt, H. in her concluding analysis of both notions: “Power and violence are opposites; where the one rules absolutely, the other is absent. Violence appears where power is in jeopardy, but left to its own course, it ends in power’s disappearance” (On Violence (New York: Harcourt, Brace and World, 1969) at 56 Google Scholar).

44. The identification of the fundamental justification of KDG in reference to Natural Law was made by Atlas, S., “Kol deA’lim Gavar” in Pathways in Hebrew Law (New York: American Academy for Jewish Research, 1978) at 76–82 (H)Google Scholar. Atlas’s analysis of Talmudic discussions and post-Talmudic commentaries lead him to associate the Halakhic category ‘hefker’ (ownerless property and renunciation of ownership) with the idea of Natural Law. Regarding that, it should be noted that in classic Roman Law there exists a conceptual connection between legal categories of ownerless (derelictio, res nullius) with Natural Law. An example of such connections can be seen in the following “Quod enim nullius est, id ratione naturali occupandi conceditur “ (Digesta 41.1.1).

45. Quoted in Israel, R. b. Isserlein, Pethahiah (1390-1460), Terumat ha-Deshen (Jerusalem: 1990) at ch. 352 at 313.Google Scholar

46. There are two medieval versions of R. Samuel b. Meir’s position. Alongside the one quoted above there exists a similar one which make the same claim in different terms: ‘Maybe the witnesses will show up and refute the verdict ruled by the court, therefore the court is not troubled for them to judge a case likely to be a distortion, rather leave the parties and KDG until witnesses come and clarify the case’. (R. Samuel b. Meir commentary on Babylonian Talmud Baba Bathrah at 35a).

47. This source is found in a 16th century collection of mid-medieval commentaries on the Talmud and Rabbinic responsa collected by Bezalel b. Abraham Ashkenazi (Jerusalem, 1520-1591/4). See Mekubbezet, Shitah, Baba Bathrah 34b (Jerusalem, n. d.) at 148.Google Scholar

48. In that sense the tactical advantage here is certainly related to the question of justiciability, where the court is provided with techniques for refraining from deciding cases on the merits when doing so would be imprudent. Though the doctrine of justiciability generally addresses the interface of political and legal issues, our exposition here offers an understanding that stretches the court’s nonjusticiabilities to the border of law and violence.

49. Justiciability is usually explained through three approaches: (1) The classical approach which inquires if there exist affirmative grants to the limits of jurisdictions; (2) The functional approach that takes pragmatic, efficiency oriented inquiries to the ability of the judiciary to resolve the controversy; (3) The prudential approach which includes sensitivity to the necessity of judicial respect for other branches of government, and the potential for embarrassment of incoherency or inconsistency. See Smith, L.A., “Justiciability and Judicial Discretion Standing at the Forefront of Judicial Abdication” (1992-93) 61 Geo. Wash. L. Rev. 1548.Google Scholar