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Monday, June 22, 2009

Talmud permits judicial deviation from the Constitution

Attention conservatives, strict constructionists and all those opposed to judicial "activism" and who want to see the Constitution restored as the law of the land: the Talmudic Tradition embodies a wide range of principles that permit judicial deviation from Constitutional law

"Judicial Discretion in Talmudic Times and the Modern Era"
by A. David Pardo (Law offices of Foley Hoag LLP)

In this Article, I explore judicial discretion under Halakhic law, Anglo-American law, and Israeli law. In Part I, I compare the differences in treatment of judicial discretion between the Palestinian Talmud and the
Babylonian (Bavli) Talmud. In Part II, I explore judicial discretion in the modern era. In Part III, I argue that the Babylonian Talmudic conception of judicial discretion is forthright about the existence and need for discretion, thus avoiding the doctrinal problems that inhere in the Palestinian Talmud. Moreover, I argue that the Bavli should serve as a model approach for coming to terms with the discretion that inheres in our Anglo-American judicial system, which is indispensable for the administration of justice.

The notion of discretion in the exercise of governmental powers is one that vexes scholars and the public alike. Is the mere existence of discretion the first stop on the road to judicial tyranny? Or is it an indispensable element in the pursuit of justice?

Some consider discretion to be “the law of tyrants: It is always unknown: It is different in different men: It is casual, and depends upon constitution, temper, passion. In the best it is oftentimes caprice: In the worst it is every vice, folly, and passion, to which human nature is liable.” This view is codified in an oft-cited provision of the Massachusetts Constitution.

It is also reflected in an engraving on the side of the United States Department of Justice building, in Washington, D.C., summarized by five words: “Where law ends tyranny begins.” Yet, in our system of government, where law ends tyranny need not begin. Where law ends, discretion begins, and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness . . . . No government has ever been a government of all laws and not of men . . . . Every government has always been a government of law and of men.

The study of discretion in the judicial process has generated countless treatises and jurisprudential theories. These studies, naturally, analyze this concept from a contemporary perspective that is rooted in modern Anglo-American law.
Judicial discretion, however, is not a new concept or one that is unique to democratic societies. Indeed, it is an issue that has divided post-biblical societies in Ancient Israel. Furthermore, the methods developed by rabbis in the Talmudic era are as relevant now as they were then, in understanding and accepting judicial discretion in our democratic society.

(Emphasis supplied)

Hoffman's note: if anyone has a complete copy of Mr. Pardo's article I would like to have it.

For further reading



Anonymous said...

Do you still need the complete copy?

Anonymous said...

I managed to obtain the complete copy of the article and my head was really spinning after plowing through it. Alice's bewilderment upon entering the rabbit hole are nothing when compared to the sense of being trapped in an insane asylum when one enters the rabbinic hell hole. Nevertheless, the hell hole does hold its own dark unintended humor.

Here is one of my favorite excerpts from this rabbinic mindset article: "The Mishnah records the case in which R. Eleazar b. Azariah's n13 cow was accustomed to going out on the Sabbath
with a thong between its horns, an act determined by the Sages n14 to be in violation of the law [*433] of Sabbath. n15
Distressing over the implication of such an act (that, if true, would mean that R. Eleazar b. Azariah had put into practice
a personal view that contradicted that of the Sages), the Yerushalmi resolves the apparent infraction by asserting that the
cow in question belonged not to R. Eleazar b. Azariah but to his wife. n16 Thus, the Yerushalmi preserves the unity of
the Halakhah, despite lacking any basis for modifying the facts of the Mishnaic record. The Bavli, by contrast, is
untroubled by R. Eleazar's apparent insolence. n17