I’m discussing differences between Jewish and American law.
Another urban legend is that Jewish law is inflexible. That ignores Deuteronomy 17:8-13 which explicitly allows every case with no precedent to be referred to the legal experts of those days. This is the essence of a common law code as opposed to a civil law code. The judges in a common law code have the ability to create remedies for situations even if the law doesn’t specify one, and they also have the right to take local custom into account. In western law, this capability first appeared under Henry II of England in the 1100s CE, 20 centuries or more after it became a cornerstone of Jewish law.
Jewish law will not accept arguments from non-experts in both text and practice. This is no different from the Supreme Court denying certiorari to a brief from an individual who clearly doesn’t understand the constitutional purpose and practice of the Supreme Court.
Jewish law also doesn’t accept the ruling of the majority of the laity. This resembles the Supreme Court overturning DOMA. DOMA violates a principle in the Constitution, and it doesn’t matter how many sessions of Congress adopt it by what size majority, it violates states’ rights and the Supreme Court will always reject it.
What later legal experts cannot do is overturn Torah. When in Mishnaic times the birds needed for certain closure rituals for tumah became very expensive, the court adopted one expert ruling that did not overturn the need for the birds, but reduced the demand. The price fell by 75% that very day. This is the reason tameh animals can never be reclassified as tahor.
Mishnah further codifies that no court can repeal a prior ruling unless the later court has more members and more expertise than the court which issued the prior ruling. Thus if you remember the issue about burning at the stake, Mishnah explicitly says that the court who issued the order to burn the witch alive lacked expertise.
This is also the reason why a criminal court, where the death penalty might be imposed, starts by consulting the opinion of the youngest or least experienced judge first. Once the top expert gives his opinion, nobody can argue with him. (That’s in Mishnah.)
Since Jewish law is based on Torah, and Torah was issued by Gd, no human court can overturn anything that Torah requires or prohibits.
While stare decisis allows systems like Jewish law to avoid unfairness when the facts of the case are identical, fairness also requires flexibility and Jewish law recognizes that. Where local custom does not conflict with halakhah, Jewish law says local custom must be followed by all permanent residents and everybody who comes to live in that community for a long time, as opposed to a quick trip. But it does not allow “paskening for yourself,” and you’ve seen situations in previous lessons where the person who paskens for himself winds up in worse shape than if he consulted an expert. That happens in other cultures as well. When I was studying for a legal studies degree we discussed situation after situation in which somebody refused to spend $400 an hour on an attorney and wound up with thousands of dollars in court and other costs.
No society can get along without a legal system, and the individual who pretends she is exempt from the legal system of the society she lives in will generally run into situations that are financially ruinous at best and may include jail time or worse. That’s because human society has millennia of experience that the whole community suffers when one person decides she is an exception from the law.
And another urban legend next week, one that had legal consequences in 1913.
© Patricia Jo Heil, 2013-2018 All Rights Reserved
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