Monday, November 30, 2009

Jewish Law and Constitutional Interpretation

For some years, I have taught a law school seminar on legal systems very different from ours. Systems covered range from modern gypsies to classical Athens and imperial China. Curious readers may want to look at a past year's web page for the class.

After teaching the seminar for several years I got bored with covering the same material, so decided to add something new. I have accordingly been studying Jewish law. It is a fascinating subject, probably the longest span of well documented history of any legal system—about 2500 years of rules, arguments, opinions.

Part of the fun of the course is seeing how the same issues arise in unrelated systems. There are, for instance, obvious parallels between problems faced by the legal system of classical Athens and similar problems in modern legal systems. In both, successful litigation could be profitable, creating an incentive to litigate not in order to punish violations of the law but in order to collect (in our context) punitive damages or be paid off with an out of court settlement. One of the solutions the Athenians found for that problem was a rule under which a (private) prosecutor who failed to get at least 30% of the (large) jury to vote for conviction was fined—an automatic punishment for abusive litigation. It might be worth considering.

The parallel I am writing this post to discuss involves a broader issue—how the law is determined. One can view Jewish law, at least at first glance, as simply working out the implications of a divinely inspired text—the written Torah, aka the Pantateuch, aka the first five books of the Old Testament. From this perspective, the job of the legal scholar is simply to figure out what legal rules that text implies. Disagreements among scholars are not disagreements about what the law should be but about what the law is.

This approach to the law raises obvious problems. The divinely inspired text may contain rules that you do not want to enforce, such as capital punishment of a son who curses his parents, or the rule canceling all debts every seventh year. It may lack rules you think are needed. And it may impose requirements for conviction that you conclude are too stringent, such as the requirement that, in order for anyone to be convicted of a capital offense, he must have been warned that it was a capital offense by two different people immediately before he did it.

All of these problems were at various points solved, either by creative interpretation of the text or by claims that the text itself authorized the making and changing of legal rules—by scholars learned in the law and by communal authorities acting as substitutes for the no longer existing king. An example of creative interpretation is Maimonides argument that the rule on the disobedient son could only apply to a son aged between thirteen years and one day and thirteen years, three months and a day—on the theory that by the latter age it was logically possible that the son could have impregnated a woman as soon as he became an adult (13 years+1 day+2 pubic hairs), that by three months later she could be known to be pregnant, and hence that a son of thirteen+three months+1 day might be a father, and as such one to whom the rule on sons did not apply.

My favorite example of the combination of additional legislation plus creative interpretation has to do with requirements for marriage. It had been held that the communal authorities could rule on secular matters but not religious matters. Marriage was a religious matter—and some secular authorities wanted to impose requirements for marriage, such as additional witnesses, beyond those provided in religious law.

If the secular authority held that a woman was not married because its additional requirements had not been complied with and so was free to marry someone else, it was permitting the marriage of a woman who, under religious law, was already married, thus engaged in a serious violation of religious law. The solution was for the communal authority to declare that, if a marriage was conducted without meeting its requirements, it would retroactively confiscate the wedding ring. Ownership of property was a secular matter, so under its authority. If the groom did not own the wedding ring (or equivalent) used in the ceremony, the ceremony was, under religious law, invalid. Hence they were not married.

The problem of canceling debts—it is hard to get someone to lend you money if he knows you are not going to pay it back—was dealt with in a more direct fashion. The rabbis (specifically Hillel) came up with a legal procedure (Prossbul) by which a creditor took his claim to the court and got a written statement that the seventh year cancellation would not apply to it. By Maimonides' day, a little more than a thousand years later, the prossbul had become the default; if a creditor couldn't provide evidence that he had one for his loan, the court would simply assume that it existed but he had lost the document. Thus a clear provision of Torah had been effectively eliminated from the law.

One view of Jewish law is that it consists of working out the implications of a known set of divine commands. Another, at the opposite extreme, is that it consists of legal scholars and communal authorities deciding what the law ought to be and then fudging up some excuse, based in at least a tenuous way on the text, for claiming that that is what the law is. The truth may be somewhere between the two, but these examples, and others I could offer, make the second view not entirely implausible.

All of which should be familiar to anyone who has been involved in controversy over constitutional interpretation in the U.S.. According to one view, it is the job of the justices of the Supreme Court to figure out the implications of a set of legal rules, the Constitution, which, if not divinely inspired—opinions on that question might differ—is at least to be treated as if it were. An alternative view is that the job of the Justices is to figure out what the law ought to be and then come up with the best argument they can, however implausible, to claim that that is what the Constitution requires, or at least permits.

In this case again, I am describing two polar positions; the reality is probably somewhere in between. But if one considers how handgun restrictions in Chicago and New York are to be made consistent with both the Second Amendment and the Doctrine of Incorporation, or how a farmer growing crops to feed to his own animals can be regulated under the clause of the Constitution giving Congress authority over interstate commerce, it is hard not to conclude that Justices of the Supreme Court have been just as willing to stretch their text to what they think current needs require as the rabbis were.

20 Comments:

At 5:17 PM, November 30, 2009, Blogger Micah said...

> And it may impose requirements for
> conviction that you conclude are
> too stringent, such as the
> requirement that, in order for
> anyone to be convicted of a capital
> offense, he must have been warned
> that it was a capital offense by
> two different people immediately
> before he did it.

That's fascinating. I've never heard that before... where is that requirement found?

 
At 11:12 PM, November 30, 2009, Anonymous HH said...

Wickard is a terrible, terrible decision.

 
At 1:53 PM, December 01, 2009, Blogger David Friedman said...

Response to Micah:

The first source I've found in the books I've been looking at is Horowitz, The Spirit of Jewish Law, pp. 167-169.

"A striking example of such merciful inpracticality was the requirement of "forewarning," hatra'ah, as proof of criminal intent, a requirement for which the Rabbis could, admitedly, find no express scriptural warrant (Sanhedrin 8b; 40; Makkot 6b). ... As evidence of such knowledge and consequent criminal intent, the Talmud required proof of forewarning, hatra'ah. Immediately before he committed the act the wrong-doer must have been warned by two witnesses."

He goes on to quote Maimonides, from M.T. Sanhedrin XII, 2.

 
At 5:56 AM, December 02, 2009, Blogger Milhouse said...

Micah, if you can read Hebrew then you can read this law in Maimonides, Sanhedrin ch 12; the Talmud references David gave can be seen here, but individual pages can't be linked to.

These rules mean that executions would be very rare; the obvious problem, then, is how to deter capital crimes. In the case of murder, which endangers the public, if the evidence makes his guilt clear then he can be imprisoned for the rest of his life to prevent him from killing again. For victimless crimes, the system relies on God's promise "for I will not acquit the guilty" (Exodus 23:7).

 
At 7:13 AM, December 02, 2009, OpenID hudebnik said...

You might be interested in the novel I've been reading this week, Jasper Fforde's Shades of Gray, which is set in a hyperbureaucratic future world in which "The Rules" are divinely inspired, infallible text which nonetheless contain a number of what any reasonable person would classify as oversights, omissions, or outright errors. But since suggesting the fallibility of The Rules is (effectively) a capital offense, essentially everyone in the society has become an expert in "loopholery", the art of getting done what needs to be done and interpreting The Rules to allow it.

 
At 12:02 PM, December 02, 2009, Blogger David Friedman said...

On the requirement of warning ...

There are mentions in Mishnah, Sanhedrin, but it isn't made explicit. One of the questions put to witnesses is "Did ye warn him?"

And in Makkoth we have "R. Jose says: None may ever be put to death unless he has been warned at the mouth of both his witnesses, ..."

 
At 6:47 AM, December 03, 2009, Blogger Eric Rasmusen said...

Is it possible that there actually is a connection between rabbinical interpretative creativity and constitutional creativity, via the grandparents of post WW2 Jewish lawyers and law professors?

The vast majority of Jewish lawyers are entirely secularized, so a first question is whether they (or their 1960's predecessors) learned anything about the Talmud from their immediate ancestors. Any idea?

 
At 10:14 AM, December 03, 2009, Anonymous Bruce said...

A few interesting structural differences between Anglo-American common law and Jewish law (or "halacha").

1. For the past 2000 years, Jewish law has lacked a hierarchical court system. There is no "Supreme Court" that has the final say in what the law is. In Talmudic times, the Sanhedrin functioned that way but it has long been abandoned. As a result, it is difficult in Jewish law to reach a final conclusive decision on what halacha is, command widespread obedience or adherence, and then move on.

2. In American law, the most recent opinions are the most authoritative. Other than a few "classics" (Marbury v. Madison, Brown v. Board of Education), we lawyers want to cite the most recent cases. But in Jewish law, the oldest authorities are most authoritative. The rabbis of the mishna (~200 CE) are more authoritative than the rabbis of the gemara (~400 - 500 CE), and these are more authoritative than the medieval Rishonim (~1000 - 1500 CE), etc.

As a result, in Jewish law, a contemporary authority, no matter how great, cannot "overrule" precedent in any clear way, since the contemporary authority is necessarily less authoritative than the earlier ones. Thus, Jewish law cannot evolve by slow drift the way that American common law can.

These problems have been partially remedied in Orthodox circles by a widespread deference to certain authorities and later codifiers (e.g., Maimonides, the Shulchan Aruch). But the system -- for better or worse -- is still inherently conservative and inflexible.

Conservative Judaism has addressed this by being more flexible in both halachic interpretation and in halachic diversity (that is, by permitting multiple approaches to particular questions).

And Reform Judaism has addressed this by labeling itself, perhaps incorrectly, as a non-halachic movement.

* * *

All of this raises interesting analogies between common law systems and economic markets. Both are decentralized decision-making institutions. But the fact that Jewish law and Anglo-American common law function so differently shows the importance of structures and institutions in this sort of system. The shape and functions of a legal system depends critically on the nature and structure of courts, legal rules, lawyers, etc. And the shape and functioning of an economic system depends critically on exchange rules, property rights, banking and currency systems, etc.

This is all a very Coasian point.

 
At 11:21 AM, December 03, 2009, Anonymous Anonymous said...

The Talmud, (the Jew's NEW Testament, in the sense that it amplifies and supersedes, in some sense, the Torah), evinces the argument that our understanding of law evolves and develops; read below.

http://www.jewishvirtuallibrary.org/jsource/Judaism/Halakha_&_aggadata_&_midrash.html

One particularly well-known bit of aggadata is found in the talmudic tractate Bava Mezia 59b. The aggadata follows a halakhic discussion in which the rabbis debated whether an oven that had become impure could be purified. While almost all the sages felt it couldn't be, Rabbi Eliezer, a lone voice but a great scholar, disagreed:

"On that day, Rabbi Eliezer put forward all the arguments in the world, but the Sages did not accept them.

"Finally, he said to them, 'If the halakha is according to me, let that carob tree prove it.'

"He pointed to a nearby carob-tree, which then moved from its place a hundred cubits, and some say, four hundred cubits. They said to him 'One cannot bring a proof from the moving of a carob-tree.'

"Said Rabbi Eliezer, 'If the halakha is according to me, may that stream of water prove it.'

"The stream of water then turned and flowed in the opposite direction.

"They said to him, 'One cannot bring a proof from the behavior of a stream of water.'

"Said Rabbi Eliezer, 'If the halakha is according to me, may the walls of the House of Study prove it.'

"The walls of the House of Study began to bend inward. Rabbi Joshua then rose up and rebuked the walls of the House of Study, 'If the students of the Wise argue with one another in halakha," he said, "what right have you to interfere?'

"In honor of Rabbi Joshua, the walls ceased to bend inward; but in honor of Rabbi Eliezer, they did not straighten up, and they remain bent to this day.

"Then, said Rabbi Eliezer to the Sages, 'If the halakha is according to me, may a proof come from Heaven.'

"Then a heavenly voice went forth and said, 'What have you to do with Rabbi Eliezer? The halakha is according to him in every place.'

"Then Rabbi Joshua rose up on his feet, and said, 'It is not in the heavens' (Deuteronomy 30:12).

"What did he mean by quoting this? Said Rabbi Jeremiah, 'He meant that since the Torah has been given already on Mount Sinai, we do not pay attention to a heavenly voice, for You have written in Your Torah, 'Decide according to the majority' (Exodus 23:2).

"Rabbi Nathan met the prophet Elijah. He asked him, 'What was the Holy One, Blessed be He, doing in that hour?'

"Said Elijah, 'He was laughing and saying, "My children have defeated me, my children have defeated me.""'

The British-Jewish scholar and writer Hyam Maccoby has commented: "This extraordinary story strikes the keynote of the Talmud. God is a good father who wants His children to grow up and achieve independence. He has given them His Torah, but now wants them to develop it...."

 
At 8:16 PM, December 03, 2009, Blogger David Friedman said...

Bruce writes:

"1. For the past 2000 years, Jewish law has lacked a hierarchical court system. There is no "Supreme Court" that has the final say in what the law is. In Talmudic times, the Sanhedrin functioned that way but it has long been abandoned."

Actually, the Sanhedrin only went entirely out of business about fifteen hundred years ago,.

And the Babylonian academies functioned as a de facto supreme court for several centuries after that.

"2. In American law, the most recent opinions are the most authoritative. Other than a few "classics" (Marbury v. Madison, Brown v. Board of Education), we lawyers want to cite the most recent cases. But in Jewish law, the oldest authorities are most authoritative. The rabbis of the mishna (~200 CE) are more authoritative than the rabbis of the gemara (~400 - 500 CE), and these are more authoritative than the medieval Rishonim (~1000 - 1500 CE), etc."

I don't think that's entirely correct."The law is in accordance with the views of the later authorities" (hilkheta ke-vatra'ei). "Jephthah in his generation has as much authority as Samuel in his generation."

"As a result, in Jewish law, a contemporary authority, no matter how great, cannot "overrule" precedent in any clear way, since the contemporary authority is necessarily less authoritative than the earlier ones."

He can't overrule precedent in the sense of forcing later judges to follow his rule--since the Sanhedrin lost its authority there hasn't been any binding precedent in Jewish law. But he can set current law to his view, even if inconsistent with past authorities--as shown by the quotes I just offered.

 
At 8:23 PM, December 03, 2009, Blogger David Friedman said...

Anonymous tells the story of the debate over whether the Oven was pure or impure. In my view that story reflects a solution to a problem that arises with a legal system based on an authoritative text.

The truth of what a text means isn't determined by majority vote. So if I think it means one thing and the majority thinks another, that's no reason for me to change my view.

This raises a problem when the Halakhic authorities function as judges, since it means the law is inconsistent.

One solution, I think embedded in that story, is to distinguish between the true interpretation of Torah and the law. Halakhic authorities decide what the law ought to be according to what they think is the correct interpretation. But once they have decided, what the law is is whatever the majority (of the Sanhedrin, later of halakhic authorities) vote for--even if it is wrong.

Hence, in the story, even if Rabbi Eliezer is correct--as the fact that God agrees with him suggests--the law is still defined as what the majority support. God, in effect, has subcontracted the job of interpreting His law.

 
At 6:43 AM, December 04, 2009, Blogger Jonathan said...

Have you looked at Islamic jurisprudence, al-fiqh, at all? It has a good deal in common with Jewish law and raises the same sorts of issues regarding sacred texts- Qur'an, Sunnah- and the force of post-textual authorities and the limits of legal interpretation and construction of law. Joseph Schacht's Introduction to Islamic Law is a good older book on the subject, provides a nice overview, mostly of Sunni fiqh. More recently, Wael B. Hallaq has written several books examaning different aspects of Sunni fiqh; Lessons in Islamic jurisprudence by Muhammad Baqir as-Sadr is a good intro to contemporary Shi'a jurisprudence.

 
At 8:09 AM, December 24, 2009, Anonymous Anonymous said...

Exodus 23:2 says no such thing as 'Decide according to the majority'; if anything, it encourages the minority to not be subject to the whims of the majority.

 
At 1:59 PM, October 03, 2011, Blogger Mikewind Dale (Michael Makovi) said...

"One view of Jewish law is that it consists of working out the implications of a known set of divine commands. Another, at the opposite extreme, is that it consists of legal scholars and communal authorities deciding what the law ought to be and then fudging up some excuse, based in at least a tenuous way on the text, for claiming that that is what the law is. The truth may be somewhere between the two, but these examples, and others I could offer, make the second view not entirely implausible."

I would personally argue that *both* views are simultaneously true. I warn you, however, that my view is considered idiosyncratic:

We have the two alternatives, of simply reading the law and letting it come out as it may, and of deliberately reading into the law what you want it to say.

Now, everyone would agree that the first principle is authoritative and binding. That is, to some degree or another, an Orthodox Jew must believe that the Law, per se, is binding, whether he likes what it says or not. Without this principle, why would God bother giving a Law in the first place? If the law can be made to say anything, then it is worthless. So everyone must accept the first principle, at least to some degree.

The question is, can the first be alloyed with the second? According to several authorities, yes. Rabbi Dr. Eliezer Berkovits is most notable for arguing, in his Not in Heaven: The Nature and Function of Halakha (as well as in his other books), that the Oral Law was originally oral precisely so that it could evolve over time, in accordance with the individual interpretations of the given rabbis, and in accordance with the societal needs of the time. (He thus mourns the writing of the Oral Law, which robbed it of its essential nature.) He says that the legitimate needs of life cannot contradict the Law which God has given, and so one can be reinterpreted to accord with the other. A true dilemma, he says, is when two principles contradict each other. For example, you must void loans in the seventh year. Granted. But you also must not shut down the economy, for then everyone would starve. These are both valid principles. The solution is the prozbul. For countless other halakhic cases in the Talmud, he makes the same sort of analysis: when two principles contradict, the Rabbis were able to freely interpret the Torah in such a way as to reconcile the two principles. I recall in his book Judaism: Fossil or Ferment?, he remarks in a footnote that in Judaism, the Law does not kill, because the Oral Law's very purpose is to make the Law say what it needs to say. See David Hazony's "Eliezer Berkovits and the Revival of Jewish Moral Thought"http://www.azure.org.il/article.php?id=271.

In the foreword to the Soncino edition of the Midrash Rabbah, Rabbi Dr. Isidore Epstein argues that the method of midrash halakhah (in which laws are derived from the Torah itself, rather than from tradition) used to be as flexible and evolutionary as midrash aggadah (homiletical teachings derived from the Torah), until historical vagaries required the Oral Law to be written and frozen. (Rabbis Berkovits and Epstein are similar here. The difference is that Rabbi Berkovits attributes the freezing of the Oral Law to its being written down, per se, whereas Rabbi Epstein attributes it not to its writing per se, but to the form it took: changing from midrash halakhah - where laws are derived directly from the verse - to Mishnah and Gemara - where the laws are presented by themselves, independently.)

to be cont.

 
At 2:08 PM, October 03, 2011, Blogger Mikewind Dale (Michael Makovi) said...

cont. from above

Rabbi Berkovits likely derived his philosophy from Rabbi Moshe Shmuel Glasner, as Rabbi Glasner's son - Rabbi Akiva Glasner - taught Rabbi Berkovits in Klausenberg before Rabbi Berkovits more famously learned under Rabbi Yehiel Yaakov Weinberg in Berlin. (Rabbi Glasner the younger even officiated at Rabbi Berkovits's wedding as mesader qidushin.) I know all this from personal communication with the respective descendants of Rabbis Berkovits and Glasner, and I do not believe any of this is documented anywhere. Rabbi Glasner the elder's philosophy, which is similar to Rabbi Berkovits, can be seen at http://www.math.psu.edu/glasner/Dor4/; read "A translation of the introduction to דור רביעי" and the two "An article on the דור רביעי by...", one by Isaac Glasner and one by David Glasner.

I believe a similar philosophy is held by Rabbis Benzion Uziel and his student Haim David Halevy. As far as I know, neither of them offered a systematic explanation of their philosophies, so I cannot be sure, but their view seems to be one involving the Oral Law being flexible and evolutionary. Rabbi Uziel said he would always try to rule leniently for the sake of love and mercy (see Hayyim David Halevi, "The Love of
Israel as a Factor in Halakhic Decision-making in the works of Rabbi
Benzion Uziel", Tradition 24:3, Spring 1989, pp. 1-20, at http://www.traditiononline.org/news/article.cfm?id=104460, and two books by Rabbi Dr. Marc D. Angel: Rabbi Haim David Halevy: Gentle Scholar and Courageous Thinker and Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel). Rabbi Halevy would say things like:
--- "There is nothing so flexible as the flexibility of Halakha...it is only by virtue of that flexibility that the People of Israel, through the many novel and useful rulings innovated by Israel's sages over the generations, could follow the path of Torah and its commandments for thousands of years."
--- "Since the words of both Bet Hillel and Bet Shammai were the words of the living God, why was the halakhah established according to Bet Hillel? Because they were gentle and patient. It seems to me that our rabbis have hinted here at the basis of the lenient approach of Bet Hillel (stressed in those details which were not expressly clarified in the halakhah received by them). In saying that both opinions represent the words of the living God, we learn that the sages of Israel have a right to decide the law in whatever manner seems correct to them. Obviously this does not mean that they can be arbitrary; it seems that the rendering of a decision in such cases rests within rabbinic authority so they can judge according to the circumstance and situation. Therefore, since Bet Hillel were gentle and patient, they sensed, in their humility and patience, reality, human frailty, the difficulties of life~-the reality which is not always paralleled in theory and good intention. They rendered desisions based on the authority vested in them and tended to leniency. Bet Shammai, who were more exacting, were not concerned with such matters, and they used their authority to rule strictly."

to be cont.

 
At 2:09 PM, October 03, 2011, Blogger Mikewind Dale (Michael Makovi) said...

cont. from above

So what I personally believe is, is that the Torah is flexible and evolutionary enough to be interpreted according to the needs and desires of a given community and generation, but only within certain boundaries. Obviously, the first principle, of a judge simply judging by what the law is, without prejudice, is important. God did not give us His Law simply so that we could turn it into putty. The Law is flexible, but not amorphous. The Talmud says that to serve on the Sanhedrin, a judge had to be able to prove that a lizard is kosher, and then show how his own proof was invalid. (Rabbi Joseph Telushkin notes that a judge would be able to discern bologna from a witness only if he himself could dish out the bologna.) In other words, there are limits to the Law, and even the most brilliant casuistry is invalid if taken too far. But within limits, the Law is flexible.

In Sifrei, we are told to obey the Sanhedrin even when it says left is right and right is left. But in the Talmud Yerushalmi, we are told to disobey the Sanhedrin in such a case. There are several solutions to the contradiction (see Lawrence Kaplan, "Daas Torah", http://www.balintlaw.com/DaasTorah.pdf), but for now, suffice it to say, there is a point at which you obey the Sanhedrin even when you disagree with it, and say, "these and those are the living words of God", and there is a point when you say, "I don't care if they're the Sanhedrin, they're wrong, and I'm not obeying them."

end of comment

 
At 2:13 PM, October 03, 2011, Blogger Mikewind Dale (Michael Makovi) said...

A second comment by me:

"According to one view, it is the job of the justices of the Supreme Court to figure out the implications of a set of legal rules, the Constitution, which, if not divinely inspired—opinions on that question might differ—is at least to be treated as if it were. An alternative view is that the job of the Justices is to figure out what the law ought to be and then come up with the best argument they can, however implausible, to claim that that is what the Constitution requires, or at least permits."

While I'm here, I'll give my own view on this too. The very purpose of social-contract theory is to make government resemble a private security agency. Anyone who takes "social contract" and "consent of the governed" seriously, cannot deny that the intention of social-contract theory was this. If you take John Locke to his logical conclusion, it is not very difficult to come up with Lysander Spooner's No Treason. After all, Johannes Althuius's Politica deals with the private business association (the collegium) as a paradigm for the whole remainder of his book about government; evidently, one is to model government on the model of free-market enterprise. The closer one makes government to a private security agency, the more one has fulfilled the goal of social-contract theory.

That being the case, whatever interpretation of the Constitution limits the government the most, is surely the correct one. Or, as Lysander Spooner would say, if that is not what the Constitution intended, then the Constitution has no right to exist in the first place, and so its true meaning (whatever it may be) is not legally authoritative anyway. Either the Constitution is founded on social-contract theory (and so it is binding), or it has no validity at all in the first place. Either way, the more limiting interpretation of the Constitution is the binding one, either because that is what the Constitution actually meant, or else because Constitution is not binding, and instead, we revert back to individual natural rights and natural law. Holmes said that the 14th Amendment does not enact Herbert Spencer, but I would say, either the 14th Amendment does so, or else the Constitution is not binding in the first place, because Spencer supersedes the Constitution in legal authority. Some believe that Richard Epstein's Takings: Private Property and the Power of Eminent Domain reads too much into the 5th Amendment, but I would say, if he limits the government more than the Framers meant to, then Epstein's view has more legal authority than the Framers'.

to be cont.

 
At 2:13 PM, October 03, 2011, Blogger Mikewind Dale (Michael Makovi) said...

cont. from above

It is a principle taken widely for granted, that social-contract is binding in addition to natural law. That is, natural law is a prior contract we are all bound to, with our without our consent. Edwin S. Corwin's The "Higher Law" Background of American Constitutional Law, p. 4, says, "The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents, however, a comparatively late outgrowth of American constitutional theory. Earlier the supremacy accorded to constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of an essential and unchanging justice.... There are, it is predicated, certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, all together regardless of the attitude of those who wield the physical resources of the community."

James Otis, Jr. wrote in The Rights of the British Colonies Asserted and Proved, "To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5; Omnipotency cannot do it. The supreme power in a state, is jus dicere only;—jus dare, strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void."

The principle of nemo potest dare quod non habet, that no one can delegate powers to the government which he as an individual does not already possess (by natural law), tends to the same.

So I would say, a judge is to declare laws unconstitutional in two cases: when those laws contradict the Constitution, and when they contradict natural law. Likewise, the president can veto bills (or refuse to execute already-passed laws) in the same two cases.

It will be noticed that nowhere have I expanded the power of government; I have only limited it. The president and the court can veto and annul laws, but nowhere have I expanded anyone's power to legislate. I have only expanded everyone's power to limit the government. So one might say that regardless of the justification, it is always legitimate, in my eyes, whenever anyone in the government finds any pretext whatsoever to annul anything which otherwise would expand the government's power. If the Supreme Court declared that natural law has been codified by Gustave de Molinari, and that anything contradicting "The Production of Security" is unconstitutional, I would celebrate. Judicial activism is either a boon or a curse, depending on whether its effect is to expand or limit government. Of course, historically, it has almost exclusively been used to expand government (see Murray Rothbard, "The Anatomy of the State").

end of comment

 
At 2:21 PM, October 03, 2011, Blogger Mikewind Dale (Michael Makovi) said...

A third comment, RE: Anonymous's citing the case of the Tanur Akhnai (the Oven of Akhnai):

I quote Rabbi Dr. Eliezer Berkovits, Towards Historic Judaism (Oxford: East and West Library, 1943, chapters 3-4, pp. 25-51; reprinted in Essential Essays on Judaism (Shalem Press, 2002) as "On the Return to Jewish National Life" pp. 155-175). The following is Essential Essays pp. 156ff:

"In order to understand how serious is the predicament of Judaism, we must not forget that Judaism originally was not lacking in the potential for development. The prophets and their successors, the teachers of the Mishna and Talmud, were not Orthodox Jews in the sense which we understand the word today. … The Talmud tells us, for instance, that R. Eliezer, in a controversy with R. Yehoshua, called for miracles to testify to the truth of his opinion, and in the end a voice from heaven declared that everywhere the opinion of R. Eliezer was decisive halacha. And yet, R. Yehoshua was able to say, 'The Tora is no longer in heaven; we are not obliged to obey the miraculous voice from heaven' [Berachot 19a]. Such a Judaism, claiming an independence that could not be influenced either by miracles or even by a direct 'message from heaven,' was surely not lacking in intellectual courage. In another rabbinic legend, the story is told that when God introduced Moses into the study house of R. Akiva, Moses was unable to follow the lectures of that great master, and regained his peace of mind only when he heard R. Akiva replying to a pupil that what he was teaching was nothing new but in fact a tradition directly 'received by Moses from Sinai' [Menahot 29b]. A legend like this expresses in a striking manner the evolutionary unfolding of Judaism in the course of Jewish history. Not even Moses himself is able to able to recognize the Judaism of R. Akiva at first glance, for it is somehow different, something new. Nevertheless, it is still torat moshe, the Tora of Moses, for it is indeed his teaching, organically unfolding itself in the life of the nation. Everywhere in the Talmud and midrash we meet this courage to apply the spirit of the ancient word to new situations and in so doing give the word a new shape. The Tora is not eternal in the sense that it retains for all time that shape in which it was first understood by men. It is eternal because it has the miraculous power to reveal to each generation new meanings which are yet old ones, which have waited just for this generation to be lifted into the sun of the passing day.

"...

"The teachings of the Tora were not suspended in mid-air. They were closely related to living human institutions Judaism looks upon life as the raw material which has to be shaped in conformity with the spiritual values contained in the Bible. Judaism is a great human endeavor to fashion the whole of life, every part and every moment of it, in accordance with standards that have their origin in unchallengeable authority. Its aim is not merely to cultivate the spirit, but to infuse prosaic, everyday existence with the spirit. Its great interest is not the human soul, but the living human body controlled by the forces of the soul. It is in and of this world. It will never yield to the obstinacy of that gigantic mass of raw material which we call life, and which so reluctantly allows itself to be molded by the spirit. It will never reconcile itself to a divided existence of which part is Caesars’ and part God’s. The whole of life is one piece; the whole of life is the testing place for man. Judaism is in love with life, for it knows that life is God’s great question to mankind; and the way a man lives, what he does with his life, the meaning he is able to implant in it – is man’s reply. Actual life is the partner to the spirit; without the one the other is meaningless."

 
At 2:41 PM, October 03, 2011, Blogger Mikewind Dale (Michael Makovi) said...

"God, in effect, has subcontracted the job of interpreting His law."

Indeed. As an anarcho-capitalist (and former minarchist), for some time, I had a difficulty: as an Orthodox Jew, I held by the legal philosophy I explained above, about the flexibility and evolutionary nature of the Oral Law. But as a libertarian, I was a Constitutional strict-constructionist who abhorred any interpretation of the Constitution that did not agree with the Framers' intent. (Of course, like Lysander Spooner, I do not always view the Constitution as authoritative, because sometimes, natural law supersedes it. But whether or not it is authoritative, the fact remains that its correct interpretation is the strict-constructionist one.)

In a sense, I was a loose-constructionist for halakhah but a strict-constructionist for secular law.

Obviously, this troubled me. My general weltanschauung is that of the Maimonidean rationalist and Hirschian Torah im Derekh Eretz (Rabbi Samson Raphael Hirsch, 19th-century German, "Torah with the ways of the world") tradition, which refuses to acknowledge any contradiction between science and Torah, or between the mundane and sacred worlds. There is only one Truth, and Truth cannot contradict Truth. It is thus impossible for me to compartmentalize, and so I am back to my dilemma: how can I be a loose-constructionist sometimes but a strict-constructionist other times?

The solution I arrived at was this: God Himself told me, in the Torah, to obey the judges who will be in those days. (To a degree; as I said, Sifrei says to obey even when they say left is right and right is left, while the Yerushalmi says no, disobey in such a case.) Therefore, I reasoned, when I am being a loose-constructionist on the Torah, and obeying the interpretation of the Sages even when their interpretation is not true of the literal text of the Torah, I realized, I am actually being strict on the law of obeying the judges. That is, I am being a strict-constructionist when it comes to the law of obeying the judges, and that law of obeying the judges in turn commands me to be a loose-constructionist in all other laws. Thus, in the end, I am a strict-constructionist for everything, for both Torah law and secular law.

So it is as you said, "God, in effect, has subcontracted the job of interpreting His law." God has commanded me to obey the Sages even when they are wrong - to an extent, at least - and therefore, when I disobey God in favor of obeying the Sages, I am obeying God!

As for my being an anarcho-capitalist now: actually, I am still a strict-constructionist when it comes to interpreting the Constitution, but it is just that now, I have a higher authority than the Constitution,

 

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