If we ask how law as a whole comes to be, one answer is that it arises when a society develops and articulates standards of behaviour.
Another view is that law comes into being when a society recognises and adopts the standards laid down by its monarch or lawgiver.
The second concept is the traditional Jewish one; the Divine Monarch posited His standards and Israel said, Na’aseh v’nishma, “We will do and we will obey”. But the legal historian might find something missing in this way of putting the case.
Where were the Israelites when they accepted the Divine Torah? In a wilderness, a no-man’s land. They knew that one day they would have a territory of their own, but in the meantime they were without a land. Can there be a society without a land, a law without a territory?
History constantly proves that the answer is yes. The whole idea that a nation is defined by a territory and vice-versa is only about two centuries old. Human experience constantly demonstrates that a group of people with a sense of belonging define and protect themselves by agreeing on their codes of conduct. Examples? Religions, professions, military and other institutions.
The Jewish people prove this assertion right. For most of their history they lived outside the Land of Israel but their legal system operated in both the “religious” and general arena. They had a considerable degree of legal autonomy in many places and at many times and indeed some of their internal legal institutions and procedures moulded the law of other societies, especially in the field of commercial law.
When emancipation arrived in continental Europe, many Jews wanted to be “modern” and flocked to the civil courts; today there is a contrary trend with many Jews finding that halachah is a superior legal system and seeking the opportunity to apply it as far as possible in the context of modern society.
The interface of Jewish and general law has become one of the most exciting areas of legal study.