The performative speech act in jewish law: Interpersonal vs. human-divine speech

This article investigates the binding power of the spoken word in interpersonal relationships and compares it to that in the human-divine relationship, according to Jewish law. I focus in particular on the area of proprietary rights. Does the spoken word have any binding authority in halakhah? Can it create an actual contract between persons or between a person and God? Using the linguistic philosophy of John Austin, I will show that, while in contemporary Israeli law the spoken word indeed creates a new legal status, it has no such binding authority in traditional Jewish law in the area of interpersonal relationships. One must perform a physical deed such as moving or lifting the object in order to create a commitment. But in the area of the human-divine relationship, the spoken word has tremendous significance, to the extent that we may define it, with Austin, as a performative speech-act. By way of example I shall examine the concept of hekdesh, dedication of an object to the Sanctuary. In order to explain the difference between the two categories, I appeal to the idealistic philosophy of Fichte, who posited two concepts of the “Self”: The realistic Self and the idealistic one. I maintain that the dichotomy of the performative speech-act in Jewish law can be understood to follow this distinction.