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.
* * *
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.
Thursday, December 3, 2009
David Friedman on Jewish Law and Constitutional Interpretation
Monday, October 20, 2008
Same-Sex Marriage, Jewish Law, and American Law
California (my state) will vote on Proposition 8 in November. This initiative, if passed, would overrule the California Supreme Court's recent ruling that denial of marriage to same-sex couples is unconstitutional.
There are many political points to be made on both sides of this issue, almost all of which I would like to ignore here. There are also many halachic points to be made (including the recent changes in the Conservative movement's position on homosexuality), almost all of which I would also like to ignore here. Instead, I would like to focus very narrowly on the issue of when Jews should support or oppose an American law of general applicability that is not in accordance with halacha (however defined).
In all 50 states, Jewish law and American law differ on the definition of marriage. Under Jewish law, a valid marriage requires a ketubah, kiddushin, the sheva brachot, etc. But of course American law has no such requirement. And under Jewish law, a divorce can occur only if the husband gives his wife a get. Again, there is no such requirement under American law. And no one seriously argues that American marriage law should be modified to bring it into conformity with Jewish law. Thus, we already support American law that allows both marriage and divorce (even among Jews) that would not be recognized under Jewish law.
So couples can be unmarried, married, or divorced under American law, unmarried, married, or divorced under Jewish law, and the two do not necessarily overlap. An Orthodox rabbi once told me that his son and future daughter-in-law were civilly married during her senior year in college so that she could could live in married-student housing (as opposed to a co-ed dorm), even though they did not consider themselves "Jewishly" married and did not act as a married couple. (They were married under Jewish law after she graduated.)
Should we support civil same-sex marriage, even though traditional halacha forbids it? I think we should.
Take another example. Jewish law strictly condemns l'shon hara, or true negative gossip where the listener does not have an important need to know the negative information. But such speech is solidly within the scope of the Free Speech Clause of the First Amendment. Most Jewish Americans (and certainly me) would oppose an American law that would allow fines or a tort suit for true negative gossip. (In fact, truth is a defense in defamation cases.) Thus, we are willing --- and in fact pleased --- that at least in this case, American law permits what halacha forbids. We rightly view such matters as matters of personal ethics, outside the scope of government enforcement.
Should this apply to same-sex marriage? For those of us at the more liberal end of Judaism, this is not much of an issue, since we either are not concerned about halacha or are willing to modify halacha to permit such relationships, and presumably such marriages. For those of us at the more conservative end of Judaism, this is an issue, since halacha does forbid such sexual activity and such marriages. But we do not base free speech law on l'shon hara, and we do not even base opposite-sex marriage law on the halachic definition of marriage. We should not oppose civil same-sex marriage merely because it differs from halacha.
There are two aspects of marriage that need to be considered here.
There are the legal rights bestowed upon married couples: the right to make medical decisions for the spouse in the absence of a medical power of attorney, the right to inherit intestate, the right to community property, the right to own property jointly in certain legal forms, etc. Most (but not all) of these can be granted by some type of contract or agreement. And almost all of them are available under civil union law. This aspect of marriage is not at issue in the same-sex marriage debate.
Instead, only the social approval or "holiness" aspect of marriage is at issue. There is no doubt that same-sex couples exist, live together, have children together (through adoption, sperm or egg donors, etc.), and need and to a large degree can have the bundle of legal rights that marriage bestows. The issue is what type of social approval does the government providing the label "marriage" for such couples signify? There are two theories here, and both weigh in favor of marriage.
At one extreme, the label can mean very little. It might simply be a shorthand designation for the bundle of legal rights that the government bestows on a married couple. (This is in fact my belief.) It conveys no imprimatur of approval. The government may issue a corporation a corporate charter, but there is no sense that the government (or the people collectively) approve of the products or services the corporation sells. The government may issue a driver's license, but there is no sense that the government approves of where the driver is driving. And merely because the government considers two people to be married does not mean that the government in any way approves of their relationship. This can be seen most clearly by the fact that we do not impose any sort of quality requirements on married couples. Spouses can be physically, sexually, and psychologically abusive, have no pleasant interactions, be intimate with others, and be downright horrible people, and they remain married nonetheless. In what sense does the government "approve" of their marriage? I do not think that a civil "marriage" does or should indicate anything more than the married people now have certain rights and duties towards each other and towards the world.
At the other extreme, the label can mean a great deal. It could mean that the people as a whole, acting through the government, have determined that any marriage (no matter how horrible in fact) has some sort of collective social approval. I think this is wrong, but I certainly agree that it has this significance, at least to many people. But if that is the case, then we as a society should offer marriage as broadly as possible. Merely because an individual opposes a marriage of type X is not a sufficient reason for the government to prohibit marriages of type X. Instead, we as a society should be as inclusive as possible. We live in a pluralistic society. There are those that support same-sex marriage and those that oppose it. Our society is largely based on the premise that for people of widely diverse beliefs to function in the same society, we should permit the greatest amount of personal freedom possible. Where there is a lack of moral consensus, we should be as pro-choice as possible.
Of course, this does not mean that Jews (and others) who oppose same-sex marriage should abandon their religious beliefs. To the contrary: such Jews are not only free to maintain these beliefs, but are free to use them for all personal purposes, and in fact should do so. A shomer-mitzvot Jew would consider a civilly-married couple to be halachically unmarried if they did not abide by halacha in getting married. He or she would consider a halachically-married couple to be still halachically married if they obtained a civil divorce but the husband did not give a get. He or she would consider a person who speaks l'shon hara to be in violation of halacha (and in a pretty bad way), even if such speech is protected by the First Amendment. And he or she would consider a same-sex couple to be unmarried under halacha, even if they were considered married by the state they lived in.
In short, the rules of halacha and the rules of American states operate under completely separate domains. Simply because something is forbidden under halacha is no reason at all to think that it should be forbidden under American law.
* * *
Update: Eugene Volokh at the Volokh Conspiracy linked to this post here, and there is an interesting discussion going on in the comments section.
Posts
