ymarkov | "The Horizontal Society", tidbit 3

A Brief Comparison of the Jewish Legal System With That of the USA (Appendix 10).

Throughout their long history the Jewish people remained steadfast to the principle that all forms of authority must he grounded on the Tora. Let us review some the principles pertaining to the interpretation and application of the Law discussed in the preceding Sections. The “Tora”— comprising the total value-system of Israel is the result of a berit (covenant), freely contracted by God and Israel. Specifically, the Pentateuch or Written Law is the Constitution, while the Oral Law is the perush representing the interpretation of the Jewish Constitution by the Supreme Court. The Mishna contains the halakhot ‘regulations’ pertaining to the Jewish Constitution. as formulated by R. Judah ha-Nasi and the Supreme Court of Israel. To apply these regulations, however, we need a “Court Ruling” (see Bava Batra 130b; Horayot 2a; Mishne Tora, Shegagot 12:2; 13:1; and below Appendix 48). The Talmud contains the Court Rulings of the last National Court of the Jewish people. Since after the Talmudic period there were no National Courts, there was a need for the expert opinion of posqim “rabbinic jurists.” Although technically lacking the authority of a National Court, their codes and responsa were a kind of “General Counsel Memoranda,” reflecting, but not representing, what the opinion of the National Court was (or would have been if the issue would have come before them).

A good model for the Rabbinic System is the Internal Revenue Code of the USA. The Code itself is drafted by the Congress, the legislative branch of government. In this sense, it parallels the Written Law. All income tax rules must ultimately find a source in the Code and apply the rules by its authority. In applying the Code we need to consult the “Treasury Regulations,” paralleling the Mishna. The regulations, however, are not drafted by the Congress, but by the Department of Treasury (nobody knows for sure, but it is probably a part of the Executive). As with the Mishna, the “Regulations” constitute the official perush of the Code. To apply the Code one must consult with the “Regulations,” just as one must consult the “Regulations” of the Mishna, before applying the law of the Pentateuch. In addition, there are “Court Rulings,” issued by the Judiciary (not the Executive). They are similar to the Rabbinic Court of the Talmud reviewing the regulations of the Mishna. Generally, a Court will not disagree with a “Regulation,” and would limit itself to resolving specific issues brought before it. For instance, “Treasury Regulations” require the taxation of “income.” The Court could decide if a particular item constitutes “income” for tax purposes, but it would not rule on what is not income. For our purpose, there are also “Revenue Rulings” by the IRS (treasury) that, like the Talmudic Court, will adjudicate on specific questions submitted before it, e. g., whether an entity is a corporation or a partnership. Finally, there is the “General Counsel Memoranda” issued by the attorneys of the Internal Revenue Service. Although technically lacking authority, the memoranda, like the decisions issued by the posqim are practically binding, in the sense that they are an accurate description of what the Internal Revenue Service ruling will be. (In this context it would be opportune to remember that as noted by Justice Holmes, lawyering is a form of “prediction” of what the court may decide; see above Section V. n. 303).

Given that the Tora was entrusted “to the community of Jacob” (Di 33:4), ‘law’ is not simply what the Supreme Court-—or the political and ecclesiastical authorities dictate. Thus, the Jewish Supreme Court can be found in judicial error. On this key-issue the Jewish legal system differs from other systems. By way of contrast, although the Supreme Court of the US may occasionally decide that a prior opinion was ‘erroneous,’ it could never be ‘in error’; see “Law and Hermeneutics in Rabbinic Jurisprudence,” pp. 1670—1672. Rhetorical noise aside, the Constitution is what the US Supreme Court says it is. This point was elucidated by Chief Justice Charles Evans Hughes (1862-1948) — one of the most brilliant minds to grace the Court. “We are under a Constitution,” he declared — ”but the Constitution is what the judges say it is.” (Cited by Joseph V. Bishop. Jr., Justice Under Fire: A Study’ of Military Law [New York: Charterhouse, 19741] p. 175). A corollary to this doctrine is that although the Supreme Court may be theoretically ‘erroneous’ it cannot commit a judicial mistake. Given the absolute discretion of the Supreme Court, “the people,” as argued by Jefferson, “will have ceased to be their own rulers, having to that extent practically resigned their government in the hands of that eminent tribunal” (see Section II n. 137). It is true that the U.S. constitutional system with its checks and balances, designed to make sure that the court does not overstep its boundaries, offers a sense of stability. However, even well-accepted constitutional principles, could at least at the theoretic level be subject to broad change and abrogation.

Therefore. Constitutional Law pertains more to the realm of the ethical than to the legal. here is what Jolowicz, Lectures on Jurisprudence. p. 25 writes:

Constitutional Law also, in so far as it relates to the composition of the sovereign, is no law. For whether a particular man, or particular body or composition of bodies is habitually obeyed by the bulk of a society, is a question of fact. Moreover, what is commonly called ‘constitutional law’—meaning the principles upon which the sovereign should act—is really only positive morality, for sovereign power cannot be limited.

Modern states, too, uphold the same ideal. The objective of legal and judicial institutions is to express, and thereby uphold and defend, the wishes of the ‘sovereign.’ True to the ideal that might equals right, litigation is in essence a battle between two parties. In Rome, the source and inspiration of Western legal tradition, a trial is “in its substance a struggle. a battle in a closed arena… a shock of contending forces.” Rather than justice, the task of the court is to serve as the arena of “a just duel fought out between them [the parties] in the full light of day tinder certain rules, which the umpire is present to enforce.” (Both quotations come from M. Car Ferguson, “A Day in Court in Justinian’s Rome: Some Problems of Evidence, Proof, and Justice in Roman Law,” Iowa Law Review 46 [1960-1], p. 740). To a large extent, this is still the case in modern judicial systems, where equality before the law is not readily attainable. Invariably, the legal system will end up protecting established inequality and hierarchies; cf. “Repressive Tolerance,” pp. 116-117. (The classical portrayal of this type of justice is Albert Camus, The Stranger, see Chapter in particular). Appropriately, one may argue that modern constitutions guarantee basic human rights, indeed they do. However, since these constitutions are neither ‘eternal’ nor ‘divine’—as with the Jewish Law—they may be changed at the wish of the sovereign. Thus, even in the best of democracies, we must recognize the possibility of disenfranchising national minorities and undesirable individuals in a strictly constitutional manner. More to the point, since there is no formal covenant articulating the specifics of the law, in fact the Constitution is nothing more than “the persons and bodies who can amend the Constitution.” Thus, the actual sovereign is the person or persons that could alter and interpret the Constitution. Clearly, the Preamble of the Constitution proclaiming, ‘We the People of the United States ... do ordain and establish this Constitution,” presupposes an authoritative body (“We the People”) anteceding the legal system. This offers unlimited constitutional powers to “the People.” At the same time, since the Supreme Court cannot be in judicial error, “We the people,” is in fact a circumlocution for what five out of nine judges dictate.

There is one major difference between Tora — as the basic constitutive document of the Jewish Nation and the US Constitution. The Judicial authority to interpret and review the Tora by the Supreme Court is explicitly authorized by a provision in the Tora (Dt 1 7:8-13). The authority of the US Supreme Court to interpret and review the Constitution is not enumerated in the Constitution, but, rather, derives from its own ruling, Marbury v. Madison, in which it assumes judicial supremacy in constitutional interpretation and the authority to impose its constitutional interpretations on other branches of government. The difference is huge. The inability of Jews to assimilate to other political, religious, or legal systems is a corollary of having rejected the notion that authority is the effect of power; that is, violence.