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
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