Friday, January 3, 2014

Fact-Checking -- Stare Decisis

Are you starting to get the drift?

First, Jewish law has many principles in common with American law. 
It has Equal Protection. 

It says you don’t have the right to touch somebody, no matter what the social status of either of you. 
It says that tit for tat is no way for a society to run.

It has the concept of battery and requires that the hitter pay damages to the hittee.
It says quarrels should be worked out in the court, not in the street.

It says that officials of the court cannot be taken to court when they are acting in their official capacity.
The rules are all there.  It took the connections of identical words to bring them all together.

This is a concept in Jewish court practice (forensic argument) called gezerah shavah.  When verses in Torah use identical words, they are related in some way, and comparisons between them will show what the relationship is.
On the other hand it is a two-edged sword.  Maybe the “your eye” and the tachat wording meant that Judaism DOES have LT.  That’s where the verse in Leviticus comes in.  It says “you shall have one law”.  How can you have one law when you use LT?  You can’t.  That’s another principle in Jewish court practice called “when two verses seem to contradict each other, if you can find a third verse it might reconcile them.”  Leviticus also has the tachat wording, and it casts its vote for damages instead of LT because that’s the only way to have one law.

Now let me point out that American law also uses gezerah shavah.  I have a legal studies degree, and I had to take a basic and an advanced class in legal writing.  One of the things we were taught was when writing a brief, you find cases that were already decided that have as many of the same facts as your case, except for the names of people and the places, dates and times.  Then you see how those cases came out.  If the majority of them came out the way you want your case to come out, and they have similar wording, then you use that wording in your own brief, where applicable, and then you give the name of that case. 
The reason you do that is another situation of fairness.  If two people do the exact same thing, and get hauled into court, how is it fair if one of them gets off and the other gets punished?

Judges like to make the same decisions when all the facts are the same except for names, places, dates and times.  It’s called stare decisis.  It means “the decision stands.”  It’s fair, and it makes people feel reassured to know they are going to get treated fairly in court compared to others who have done the same thing. 
Jewish law practices stare decisis just like American law.

Next question?

© Patricia Jo Heil, 2013-2018 All Rights Reserved

No comments:

Post a Comment