"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).

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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.