Jewish Law and Constitutional Interpretation
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.