Contrasts in American and Jewish Law (review)

Jewish survival throughout the nearly 2000-year exile has involved the delicate balance between adherence to G-d’s law (the written words of the Bible, together with rabbinic teaching, interpretation, and transmission through the successive generations) and the often oppressive, sometimes benign, legal codes and pronouncements of secular authorities. Putting aside those laws aimed directly at persecuting the Jew (special taxes, conscription into military service, restrictions on property ownership, the outlawing of certain religious practices, etc.), scholarly concern at the intersection of Jewish and secular law has centered, for the most part, on the practical—when does one law supersede the other and how do we resolve conflict? Rarely has the Jewish scholar been afforded the tranquility or luxury to ponder the theory or philosophy behind disparate legal trends and applications and to analyze what these systems teach about the choices that we face both as citizens and Jews. Pollack and his coauthors have used their interdisciplinary backgrounds and scholarship to produce a work that will allow any reader to appreciate that newer is not necessarily better with respect to legal thought concerning a range of legal and social issues at the forefront of public concern, including: wrongful living, search and seizure in schools, the procreative rights of prisoners, liability for environmental damage, and the rights of the mentally impaired. More impressively, they accomplish this while showing that Jewish scholarship throughout the millennia has maintained a remarkable level of sophistication, albeit without the jargon and phraseology that tends to clutter more contemporary analysis.

In his introduction, Professor Michael J. Broyde, who has written extensively on topics of law and contemporary halacha, establishes what ostensibly is the framework or thesis for the rest of the book (which otherwise would just be an anthology of six articles, five of which have been previously published in law journals). He defines the American legal system as primarily concerned with rights and the Jewish system as primarily concerned with duties, with an overlay of a religious belief structure. While reading this introduction, my mind wandered to another analysis contrasting the Jewish legal system with that of a precursor of the American system—Roman law.

The Midrash (Ruth Rab. 3;2, Kohelet Rab. 2;8) recounts a debate between Hadrian (emperor of Rome between 117 and 143 C.E.) and R. Joshua b. Hananiah. The emperor challenged Rabbi Joshua by stating that he was greater than Moses, since he was alive and Moses was dead. Rabbi Joshua responded by asking if the emperor could decree that people should not light fires in their homes for three consecutive days. The emperor was certain that he could and he issued an immediate decree. That same evening, the emperor and Rabbi Joshua went onto the roof of the palace together and saw smoke ascending from a chimney in the distance. Rabbi Joshua said “[E]ven while you live your commands are ignored, while Moses commanded many centuries ago that no fire be lit on the Sabbath and to this day no Jew will make a fire on Sabbath.”

This simple story highlights some of the themes that underlie Contrasts in American and Jewish Law, albeit themes that appear between the lines of text. One is perspective—understanding who is debating in order to determine the weight, bias, and credibility of the positions that gives the reader the ability to draw objective conclusions about the value of each systemic approach. Despite the lip service we pay in law school to the value of precedent, the typical starting point for much current American legal scholarship and analyses is a recent (within ten years) court decision. For example, the chapters on wrongful living (Chapter 1) and procreation rights of prisoners (Chapter 3) use just such opinions of appellate judges to set out tests and considerations for deciding future variations of the issues. In contrast, the primary Jewish source cited in these chapters is the Talmud, redaction of which was completed in 427 C. E. Of course, the...