Touro Law Review
Like any legal system, Jewish law is amenable to economic analysis, both positive and normative. Economic analysis can help to explain how and why the various rules comprising Jewish law arose and persisted over time. It also can facilitate a direct assessment of Jewish law on the merits. In practice, however, it is a mainly positive economic analysis of Jewish law that scholars have emphasized, while normative analysis has, for the most part, been underemphasized.
Take, for example, the application of law and economics to biblical exegesis. The legal-economic work in this field has been largely descriptive rather than prescriptive. Scholars such as Saul Levmore and Geoffrey Miller have argued persuasively that positive legal-economic analysis can help to explain the existence, preservation, and structure of various biblical regulations. They argue that the Hebrew Bible's regulations are economically predictable. But they do not try to defend them on normative grounds. As Miller has explained in a paper narrowly applying positive economic analysis to the Talmud, "economic analysis of law is the use of economic principles and reasoning to understand legal materials." The narrow goal of positive economic analysis of law, applied to Jewish law as to other contexts, is thus to understand and explain rather than to justify the rules and laws under study.
This paper builds on prior work applying economics to Jewish law. It argues that Jewish law lends itself not only to positive but also to normative legal-economic analysis. In contrast to prior work applying economics to biblical interpretation, this paper employs both positive and normative legal-economic analysis. Three sets of biblical regulations-those pertaining to lepers, loan agreements, and land ownership-are studied from both positive and normative perspectives. And the conclusion reached in each case is that the regulations at issue are not only predictable as a descriptive matter but also normatively defensible.