One of the best known distinctions among the precepts of Judaism is that between the precepts that apply “between man and God” and those that apply “between man and his fellow.” It is generally assumed that this distinction has been a matter of consensus since the time of the talmudic sages.

The present article examines this assumption by means of a close reading of the earliest sources that draw the distinction between the two categories. The discussion of the tannaitic sources will reveal disagreements about this categorization. We will review this disagreement in the context of a hidden debate between the talmudic sages and early Christian literature.

In this context, we will also address the question of the enumeration of the Ten Commandments and their division on the tablets into two sets of five precepts. We will propose that the talmudic sages’ position on this question is also a polemic response to the approach that emerged in early Christianity.

This chapter presents a concept of office as the central, organising concept in public law. Public law is, effectively, the law of public offices. An office is a stable, institutionalised social role tantamount to an artificial legal person that is occupied by a person from time to time in virtue of which that person acts ‘outside themselves’ and for the political community as a whole. This is the key to understanding the law of judicial review, which is uniquely concerned with this official mode of action. The concept of office has languished at the margins of public law theory since the nineteenth century reform of the English civil service. Its reinstatement is essential to understand the judicial review of official action beyond statute, and would reinvigorate and enrich public law theory more broadly as well – up to and including the foundation of a powerful conception of the rule of law.

This article examines the earliest rabbinic comment on Deuteronomy 32:36, which is part of Moses’s final words to the Israelites before he dies and they enter the Promised Land without his charismatic prophetic guidance. The Hebrew noun mitzvah and verb tzivah, usually understood to mean “commandment” and “command” (“enjoin” in NJPS) respectively, are understood in their biblical context and rabbinic explication to suggest as well the sense of passing something on at death as a legacy or inheritance. Whereas a commandment is usually understood as authoritatively imposed from without, a legacy is understood as something voluntarily received (transmitted) from within. The midrash suggests that at the age of 120 years, and unable to accompany the Israelites as they enter and settle the Promised Land, Moses can no longer command with authority but must cajole and implore with gratitude the Israelites in each generation to maintain the Torah through voluntary acceptance. In a striking scene, Rabbi Judah the Patriarch is depicted imploring his students in the same words as did Moses. By implication, the auditors of the midrash in each generation, down to the present, are similarly besought, with the greatness of the Torah and Moses being continually at stake.

This chapter sets out the taxonomy of non-statutory executive powers ultimately adopted. It is a very simple taxonomy that draws a fundamental distinction between statutory and non-statutory executive powers but no distinctions for the purposes of judicial review between non-statutory executive powers associated with the Royal Prerogative and those that are more mundane, and appear to be nothing more than the ‘residual liberties’ of the Crown as a legal person. Once the logic of office, official empowerment, and official action is adopted as a premise, the idea of the ‘third source’ as generally articulated simply falls away. While the distinction may be interesting or useful in a historical sense, it is of no relevance to the ‘how’ or ‘why’ of judicial review.

This chapter explores the different ways of approaching judicial review, and makes some initial criticisms of the historical ‘ultra vires debate’ of the 1990s and 2000s. It argues for a return to the concept of jurisdiction (and jurisdictional error) as a central category of the law, and for a focus on non-statutory executive powers as a primary case for and from which to build a theory of the supervisory jurisdiction. While legislative intention is important, wherever it is relevant, it is not relevant where the official powers in question obviously derive from rules of competence outside of legislation. Further, common law rules of conduct are always central to judicial review in the context of statutory grants of power. This insight is conducive to a simpler and more powerful conception of judicial review based around a common law doctrine of ultra vires.

Political religion is a popular concept for studying totalitarian regimes including the Soviet political regime. In this paper, I contribute to the field by utilizing it for studying Soviet law. I start with brief description of the Soviet political religion and its ideological premisesMarxism-Leninism teachings on state and society. Then I elaborate on what I call “the symbol of faith of Soviet law” a set of ideas or dogmas that exhibit the influence of Soviet political religion on Soviet law. These ideas concern the nature of Soviet law, its role in society and in the movement toward communism, how law interacts with politics and the State, and its relationship with bourgeois law. Then I show how Soviet jurisprudence developed these ideas in what I call “theology of Soviet law”. Finally, by exploring four concepts in Soviet law uniqueness, publicness, politicization, and socialist legality, I try to clarify how and to what extent Soviet political religion influenced the real legal system of the Soviet Union.

This chapter introduces the central technical apparatus to describe official action and thus, also, to describe the mechanics of judicial review of official action implicit in the traditional terminology of ‘ultra vires', that is, acting ‘beyond one's powers'. Officials are reposed with powers in virtue of rules of two types, which I call rules of competence and rules of conduct. These are not just labels of convenience, they explain the constitution of office and the inherently legal and limited nature of official vires. They box out the ‘space’ in which an official (i) can and (ii) may act lawfully, which space I call ‘Spielraum'. This concept relates to a modified Hohfeldian schema of jural relations which removes the temptation of "residual liberties" as a valid category of the official legal position.

The article contributes to the unsettling of the Western paradigm of “law and religion,” by examining the overlapping of the two categories in the context of Jewish, Islamic, and Zoroastrian discussions of legality and revelation in the early Abbasid period. With regard to all three legal traditions, the article traces a process of theologization of the law (and minimization of the role of human agency in effecting the content of revelation), on the one hand, and one of textual demarcation and confinement of the law (in line with the principle of “legality”), on the other hand.

The article argues that Sherira, Shāfiʽī and Manuščihr played a particularly significant role in framing and articulating these broad processes, by insisting on the textual confinement of God’s revelation as pronounced at the initial revelatory moment in the Mishnah-cum-Talmud, Hadith, and Zand (alongside the Torah, Quran and Avesta). This, in turn, paved the way for regarding these corpora as the exclusive, complete, and authoritative articulation of the law. Indeed, the parallel diachronic shifts evident in the three religious traditions points to a broader legal-theological turn in the early Abbasid period, which bears significant implications on the history of the dynamics of law and religion.

This paper examines the methodological problems presented by the relationship between law and religion, and the tensions between internal and external approaches. It argues for a (neutral) semiotic approach: the basics of sense construction, as understood by the Greimasian model of semiotics, are the same for both law and religion. At the same time, the model allows for the identification of differences. But it also problematizes the value of the concepts themselves: who, we may ask, needs to talk about either “law” or “religion” as such a very different question from that of the characterization of particular acts or norms as “legal” or “religious?”. “Law as Religion: Religion as Law” is thus a secondary (or meta-) question addressing the relationship between institutional concepts rather than human behaviour in either its factual or normative dimensions. It may, however, figure large in the rhetoric of religious politics, whose full understanding requires us to narrativise the pragmatics (speech behaviour) of its various participants.

This chapter provides some more detail on the rules of competence and rules of conduct that empower officials to act as such and constrain the scope of their action. The logic of empowerment, and the fundamental distinction between ability and permission, provides a profound insight into the two traditional ‘limbs’ of the ultra vires rule – the ‘narrow’ limb concerned with competence, jurisdiction, or vires in the strict sense, and the ‘broad limb’ concerned with the manner, form, and purpose of an exercise of a competence that the official clearly does have. Not only does this provide a simple and powerful explanation for the ultra vires review of non-statutory executive powers; it provides the foundation for a general theory of judicial review based in the courts’ inherent (common law) jurisdiction to police the bounds of, and constraints upon, officials’ vires – whether statutory or non-statutory.

This chapter explores the normative foundations of judicial review by rounding back on the concept of office. Judicial review exists to ensure that repositories of official power act only within the scope of the powers reposed in them. Official ‘power’ is inherently limited in virtue of being translated into official ‘powers’ (i.e., vires) that are implicitly capable of judicial interpretation and enforcement. The same applies for the constrains (i.e., rules of conduct) that operate on the manner, form, and purpose of their exercise. This gives rise to a concept of the rule of law as the rule of officials acting lawfully, which is a powerful expression of the ‘rule of law, not of men’ strand of thinking that traces back to Bracton at least. Office provides a superior point of departure than the radical English notion of parliamentary soveriegnty. This makes an appropriate concept of ‘public trust’ or ‘public fiduciary law’ the best expression of the conceptual and normative basis of judicial review. Far from being a slipshod translant of private law fiduciary remedies into public law, the emerging idea of ‘public fiduciary law’ is an apt expression of the deeper logic of office.

This introductory chapter sets out the major themes of the book and presents an overview of the core arguments. A gap has emerged between theory and practice in the English law of judicial review: the review of non-statutory executive powers has been well established for decades, but the conventional theories about the conceptual basis of the supervisory jurisdiction fail to explain why this is the case. This is surprising, in the case of the so-called common law theories of judicial review, because non-statutory powers should be their home turf. However, most common law theorists have adopted a conception of official action in which 'duties of good administration' cut across an official's amorphous 'power' rather than being inherent in and thereby constraining a set of juridically defined 'powers' in the sense of vires. As for the so-called ultra vires theories, the essential connection they posit between the judges' supervisory jurisdiction and legislative intent convolutes our understanding of judicial review and misappropriates the terminology of 'ultra vires'. It is thus necessary to begin from first principles and to work through the supervisory jurisdiction over non-statutory executive powers from the ground up.

This chapter introduces the problem of official action beyond statute as a central concern to public law theory. It reviews the most important classical accounts of the Royal Prerogative and the modern notion of a ‘third source’ of executive power besides statute and prerogative. It also introduces a major them in the book, namely the concept of ‘official power’ as a set of ‘legal powers’ and uses this critically to assess common misconceptions about the nature of official action beyond statute – particularly conceptions of the third source as a set of ‘residual liberties’ inuring in the Crown in common with private individuals.

We define canonicity as a variable property of all cultural discourses: it refers to the extent to which the components of a given discourse – its terms, texts, practices, etc – tend to inhere within it over time. Law and religion may both be characterized as strongly canonical discourses, meaning that they tend not to change over time. This property stems from the particular functions that law and religion play within human culture; hence it is not dependent on the political ends to which law and religion are often used.

We follow Peter Berger’s assertion that any religion posits a particular conception of the cosmos; hence religion is irreducibly descriptive. In contradistinction to science, the descriptive elements of religion are generally not falsifiable by empirical observation. This resistance to falsification is what makes religion strongly canonical.

In contrast, legal discourse is irreducibly prescriptive. It is distinct from other prescriptive systems, such as morality, in the paramount value it places on consistency, both at any given moment and over time. This diachronic consistency is reflected in the fact that, once established, laws tend to remain in force until formally changed or annulled; this is the strong canonicity of law.

This chapter launches a concise but sustained critique of the historical ultra vires debate and the main positions in it – especially the so-called modified ultra vires theories, which it argues should be renamed so that ultra vires can be reappropriated for the inherent common law jurisdiction to supervise the bounds of official powers. The ultra vires debate started in the context of a review of non-statutory power, but the debate quickly moved on to become one about the radical English doctrine of parliamentary sovereignty. A high degree of consensus on that doctrine and a rather surreal choice of premises by the ‘common law’ and ‘legislative intent’ camps, respectively, led to an intense but ultimately frustrating debate. The framework presented in earlier chapters offers a way to circumvent the terms of the historical debate and take a fresh look at the vitally important questions at its heart.

The relationship between law and religion can be imagined as a conjunction or a disjunction. Beginning with the suggestion that the terms “law” and “religion,” when their meaning has not been taken for granted, have become too invested with ideological weight, as a result of debates over secularism, to be of much use for analytical purposes, this essay substitutes a series of alternative dichotomies: among others, auctoritas versus potestas, the constituting versus the constituted power, and charisma versus law. Examining the history and interplay of such categories, I suggest that such dualities often describe the dynamic tension between sovereignty and legality that defines an existing order. Special attention is given to the historical examples of the pardon power and the Pauline opposition between charis and nomos, as well as to David Daube’s argument that redemption in biblical traditions was a sacralized legal concept. Through a series of thought experiments, I suggest that law and religion may be understood in some cases as twins, born together and inseparable, just as law cannot be fully distinguished from sovereignty.