Thursday, December 3, 2009

David Friedman on Jewish Law and Constitutional Interpretation

David Friedman has an interesting set of posts on Jewish Law and Constitutional Interpretation and And For the Real Enthusiasts in Jewish Law, A Story. He discusses some of the broad "interpretive" techniques of the Talmud and compares them to American constitutional interpretation.

There are some interesting differences between the structures of Jewish Law and Anglo-American Common law.

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.

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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.

Ronald Coase had made this argument -- institutions matter -- with respect to economics, and the same is true of legal systems.

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