Friday, March 19, 2010

Stare Decisis and Jewish Law

Recently, in a 5 – 4 decision, in  Citizens United v. Federal Elections Commission the Supreme Court of the United States, overturning two precedents, struck down portions of the McCain-Feingold Act and held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment, potentially opening the flood gates for corporate campaign finance expenditures.

The Supremes’ decision shined a bright spotlight on an ongoing tension between stare decisis ("to stand by things decided," i.e., binding precedent) and “advisory precedent” in American, British (common) and Israeli law , among other legal systems. The decision has been much vilified and to a lesser extent praised by advocates of different points of view.
The tension between precedent and innovation is not new, and in fact goes back thousands of years.

It may be useful to consider the Talmud. Talmudic study has always been a marketplace of competing ideas and sometimes hairsplitting distinctions. Not only is the Talmud itself replete with controversy, but in the standard editions of the Talmud, the text is surrounded by commentaries and super-commentaries, and thousands more glosses have been written over the generations, many flatly contradicting each other.

What emerges out of all this seeming chaos is like the results of a spectroscopic analysis, with bands of different colors whose width represents the degree of consensus. On some issues, there is a wide band of a single color signifying broad agreement, while on others there is a colorful rainbow of narrow bands reflecting an enduring lack of consensus. Of course, the range of opinion is ultimately constrained by the Torah, which functions somewhat like the US constitution in establishing immutable boundaries.

Over the years, in a lengthy process, Jewish law, which was Rabbi- (judge) made) based on Torah mandates, became codified. Given the Talmud’s preference for inclusion and respect for multiple opinions, such codification was, to say the least, not without criticism. The principle objection was that codifications inherently violate the ancient precept that halakha (Jewish law) must be decided according to the later sages; a precept known as hilkheta ke-vatra'ei (the halakha follows the later decisors). This doctrine is essentially oppositional to the position of stare decisis which codification represents.

Menachem Elon, a Rabbi and Professor who was from 1977 to 1993 a Justice on the Israeli Supreme Court, and its Deputy President from 1988 to 1993 commented in his major work, Jewish Law: History, Sources, Principles: “This rule (that the halakha follows the later decisors) dates from the Geonic period (589 to 1038). It laid down that until the time of Rabbis Abbaye and Rava (4th century) the Halakha was to be decided according to the views of the earlier scholars, but from that time onward, the halakhic opinions of post-talmudic scholars would prevail over the contrary opinions of a previous generation[1].
Elon goes on to quote Rabbi Asher ben Yechiel (1259 – 1327), known as the Asheri or Rabbenu Asher, “our teacher, Rabbi Asher” known as the ROSH. He famously said, “If one does not find their [earlier] statements correct and sustains his own views with evidence that is acceptable to his contemporaries...he may contradict the earlier statements, since all matters that are not clarified in the Babylonian Talmud may be questioned and restated by any person, and even the statements of the Geonim may differ from his...just as the statements of the Amoraim (rabbis living from 200 to 500 CE) differed from the earlier ones. On the contrary, we regard the statements of later scholars to be more authoritative because they knew the reasoning of the earlier scholars as well as their own, and took it into consideration in making their decisions[2].” My teacher, the late Professor Isadore Twersky of Harvard has extensively written on the tensions associated with codification.[3]
The basis for controversy about writing down laws rather than merely memorializing legal principles is because legislative law is inherently less flexible than Judge-made law. For this reason, other than the Bible, Jewish law was maintained as oral instruction until political instability prompted Rabbi Judah Ha-Nasi and his rabbinic colleagues to redact the Mishnah, the older portion of the “oral law” in the late second century CE.
Of course, judges and litigants alike all crave certainty, which well-written codes provide.
As a result, and after a length evolutionary process, normative practice was codified by the Shulchan Aruch, (“the set table”) written by Rabbi Yosef Karo (1488-1575) in Safed (Tzfat), in the north of Israel in 1555 - 1558, and first printed in Venice in 1565. It was adapted to the customs of Ashkenazi (German and Eastern European Jewry) with glosses written by Rabbi Moshe Isserles, known as the Rema, who was the Maimonides of Polish Jewry) in a work known as haMappah (the tablecloth, first published with the Shulchan Aruch in 1569.

The Rema himself cautioned against over-reliance by judges on his own code, saying, “in any case, a judge must be guided only by what his own eyes can see.[4]”[11]. Many others voiced even stronger objections to codification.

Common law jurisprudence tends to follow the rule of hilkheta ke-vatra'ei. Decisions are based on case law, which need not be decisive. Cases are granted more or less weight in the deliberations of a court according to a number of factors, the most important of which is whether the precedent is "on point," that is, does it deal with a circumstance identical or very similar to the circumstance in the instant case? Also, when and where was the precedent decided? A recent decision in the same jurisdiction as the instant case will be given great weight. Next in descending order would be recent precedent in jurisdictions whose law is the same as local law. Least weight would be given to precedent which stems from dissimilar circumstances, older cases which have since been contradicted, or cases in jurisdictions which have dissimilar law.

Perhaps it is the inherent elasticity, flexibility, and somewhat controlled chaos of the Talmudic study that has enabled Judaism to renew itself and remain relevant after thousands of years, and it might well work in American law as well.

(My wife, Dr. Rachel C. Sarna, my brother, Professor Jonathan D. Sarna,Professor Lawrence H. Schiffman, Rabbi Franklin Breslau, Rabbi StevenPruzansky, Esq., and Rabbi Emanuel Adler, Esq. assisted in the preparation of this  article. To all of them, my thanks.)

[1] Piskei Ha'Rosh [by Rabbi Asher ben Jehiel], BT Bava Metzia 3:10, 4:21, BT Shabbat 23:1
[2] Piskei Ha'Rosh, BT Sanhedrin 4:6, responsa of the Rosh 55:9
[3] Isadore Twersky, “The Shulhan ‘Aruk: Enduring Code of Jewish Law” in The Jewish Expression by Judah Goldin (ISBN-13: 978-0300019759), Rabad of Posquieres: A Twelfth-Century Talmudist (ISBN-13: 978-1590452752) and Introduction to the Code of Maimonides (Mishneh Torah), (ISBN-13: 978-0300028461)
[4] Quoted by Elon, p.1356.

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