Private Law Theory

Abstract:
Until the Twentieth Century halakhic sources provided that licensed doctors who erred would be liable only in a heavenly court. Modern poskim and supporters of the Mishpat Ivri movement have used a variety of techniques to bring Jewish law into line with Western norms by redefining the standard of care and the measure of damages and by imposing liability for omissions and for failure to obtain informed consent. There are substantial costs to these efforts. Older texts that retain their sanctity do not easily yield to radical reinterpretation, and one is likely to lose sight that the halakha has its own goals for it sees compensation as a means to atonement, not as an end in itself or as a means of corrective justice or deterrence. The Article considers several other means of bridging the gap between the classical sources and modern needs and finds them unsatisfactory. Drawing on an analogous problem in American Admiralty law, the Article concludes that given the changes in the theory and practice of medicine, radical reinterpretation is, despite its costs, appropriate both for those who want to be governed directly by halakha and those wanting Jewish law to be a source of Israeli law.

Friedell, Steven F., The Recent Transformation of Medical Liability in Jewish Law (August 3, 2012).

First posted 2012-08-04 08:28:56