Tuesday, June 12, 2007
Christian vs. Rabbinic conceptions of law
Legal minds may be interested in a paper here entitled “Jesus’ Legal Theory – a Rabbinic Interpretation” by Professor Chaim Saiman of Villanova Univ. Law School. I was fascinated by Part I of the paper where the author recounts how he engaged a Presbyterian church audience in a discussion about the first Biblical commandment “to be fruitful and multiply. When asked how many children are sufficient to fulfill the command, the audience seemed unable to even comprehend the question, much less to even begin to consider the range of question raised in Yevamos 62 regarding issues like whether one has fulfilled the commandment if one’s children die, whether women are included in the commandment, whether the sex of the children matters, etc. Most of the audience simply felt the answers to these questions were matters of conscience or to be discussed with other community members, but not to be decided based on legal analysis. In contrast, “The Mishna, the Talmud and in their wake Rabbinic Judaism conceptualizes each of these questions as inherently legal. The reasoning process involves (using modern lawyer’s terminology) reading the statutory language and relevant caselaw, identifying latent ambiguities and employing fairly conventional forms of legal analysis in arriving at a conclusion.” Saiman claims that the two approaches represent two competing theories of law - focus on the spirit vs. focus on the letter – that shed light on modern legal issues like whether judges should focus on the purpose of a statute or its grammatical interpretations, emphasize equity or strictly legal outcomes, functionalism vs. formalism, etc.