My brain is tired from its exercise tonight of razor-sharp cutting through scarcely separated layers of religion and morality. Ahem.
Voltaire, you knew just what I needed to hear:
Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan [Muslim], and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There the Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word.
At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.
If one religion only were allowed in England, the Government would very possibly become arbitrary; if there were but two, the people would cut one another’s throats; but as there are such a multitude, they all live happy and in peace.
(from Notable and Quotable.)
Voltaire is talking about capitalism, but this applies just as well to law. If “bankruptcy” is the only infidelity in capitalism, then I’ve been sifting through legal interpretation to find those empirical wrongs punished in all legal systems. The thing is, my paper is actually on Jurisprudence. So there’s this shifting empiricism between analyzing what is and analyzing how we got there.
What I’m doing is analyzing law from four “jurisdictions”: Jewish, Catholic, Anglo-Saxon common law as we know it, and a fourth “in reason we trust” society that has specifically removed the legal bits that evolved directly from religious morals. Functionally the fourth jurisdiction is the equivalent of people who won’t thank you when you say “bless you” after they sneeze, because even though it’s been incorporated as a cultural norm, the fact that it brings religious context to the everyday is somehow offensive.
My theory of evolution/interpretation is this:
Right now we have four main sources of Jewish law. We have God’s sermon to Moses on the Mount, when he delivered the Ten Commandments. We have Moses’s interpretation, and what he told the people that this meant (remember: only Moses heard God’s words at Sinai). Then we have the Scholars’ interpretation. There’s one example in particular where Jewish texts make it clear that the Scholars (we’re talking like the Bal Shem Tov) are free to interpret. If Scholars “find” the “right” interpretation — explicitly, even if it’s not what God meant! — then this is the law that attaches. Finally, we have individual rabbis interpreting the law for their immediate community. This is a bit like having an in-house counsel who’s authoritative as to keeping right from wrong, but not the final word by any means.
That’s the method for Jewish interpretation, but the key to Jewish law is that it’s absolutely casuistic. Each case is completely individual, with no binding precedent. And predictably, nothing is binding across jurisdictions. So while the Scholars may toil away to define precisely what “dark” means (as in: no eating “after dark”), rabbis are also expected to give some decree within their own communities, which may or may not agree with what the higher scholars have said. Similarly, presumably, the head of each household has authority in that smaller “jurisdiction,” and — on the smallest level — perhaps part of the point of wearing a kippah is to remind oneself that part of being “created in the image of God” is that we are to think and interpret and recall at all times that we are responsible for conjuring our own authority.
A lot of Jewish literature discusses the Mosiach age, the age when the Messiah will come. Literature calls the Messiah the one who will “rebuild the temple.” Among the main precepts of Jewish thought is that when the Messiah comes, he’ll tell us the right answers. So the entire foundation of law will change, because it will no longer be built on this series of interpretations. Rather than thousand of interpretations of “dark,” the Messiah will simply give the right answer. Arguably when that happens our duty shifts, from thinking and interpreting to doing the right thing bc there is no longer any “ignorance” excuse available for not doing the right thing.
Interestingly, that’s exactly what Christians did when the body of Jews around Jesus accepted him as the Messiah. They asked him for answers, believed his answers, and started to go forth as Samaritans. Now that we are charged with knowing the right answers, our duty is much higher. The most obvious iteration of this higher duty is in the fact that only Christians have Hell. If Jews live a less-than-stellar life, they get cast temporarily to Gehanna, which is like the Catholic purgatory (best and beautifully rendered in Joyce’s Portrait of the Artist!) — basically disambiguation. Both Christians and Jews have Heaven (for Jews “Ganeden,” roughly from which we get “Garden of Eden”), but only Christians, with the enhanced (knowledge-charged) duty to do good have punishment if we fail.
The duty is no longer to interpret and teach your children to do the same; now the duty is to help your neighbor and effectively emulate the messiah — the Christ — at all times. What would Jesus do? That’s the end of the inquiry. There’s no more considering which vocals to use — indeed, Christians don’t even read holy texts in their original language. In fact, the disciples did not even write in their native languages. I, having grown up Catholic, of course have never read the Greek books, but ostensibly Paul wrote with very strained voice because he did not understand most of the language he used.
Christian law goes much more deeply into reason than does Jewish law, primarily through Thomas Aquinas. Aquinas wrote about how there is an empirical “right” and “wrong,” but that the Christian “holy spirit” is in each of us in the form of the ability to reason and to decide how to behave. If we simply emulate Jesus like automatons, Aquinas argues, we are not being ethical at all. So there is still interpretation to be done. Perhaps what Aquinas meant to say was that we are to emulate Jesus in using our reason to understand God, rather than just WWJD-ing. So being a good Christian is really just being a good Jew!
Here’s where common law comes in. Common law culls the best from both traditions and adds in a spark of living interpretation. While with religious law we’re interpreting something with a right answer, with common law we’re merely trying to find the best application of precedential law to a given set of facts. In the latter situation the law makers — or, more accurately, finders — are just doing the best they can with what they’ve got. In the former, there is a right answer and it’s deeper than politics or civics. It’s morality.
It’s pretty clear that law and morality should be separate. They’re not dramatically different in most cases, but the places where they do differ are pretty significant. For instance, most common morality would dictate that if your brawny, drunk, jerk friend carries a young girl into a Vegas men’s room to do unspeakable harm, you would have to stop him. Your moral duty under either of the 2 Abramahic codes above would require you to do almost anything in your power to stop him from hurting her. In Christianity, that duty is up to and including sacrificing your life for the child, while Judaism clearly states that one’s own life always comes first.
[NB: I’m describing a case, obviously, but I’m at a total loss for the name and I can’t find it on Westlaw. I’ll update in the morning when I get the name.]
In our legal system you have no legal duty to stop someone else from perpetrating even a horrific act. Indeed, if you do try to stop someone and you (even inadvertently) aggravate the situation, you’re held legally liable for however much you make the situation worse. Our common law further disincentivizes casual good samaritanism. If you assume the duty to help someone, and then you fail to help, you’re liable for what probably would have happened to them anyway. For instance, if you see someone drowning off shore and you swim out to save him but fail, then you are potentially liable for his death.
So our law is more Jewish in process, because we are all charged with considering whether our actions are what the law intends, or not. But it’s Christian in nature, because there are so many disincentives from going too far. Since Hell only attaches for Christians, we have to consider punishment a function of this higher-charged law. And since ignorance of the law is no excuse in A/S common law, we have to acknowledge that we’re charged, in a Mesiach way, with knowing, if not what the law is, then at least what society will be likely to sanction and what it will not. So effectively the question does come down to some background social norms. This is what crim law considers the condition precedent to invoking a meaningful mens rea. It’s empirical, enduring morality, more basic than law but arguably not as basic as religion. That’s the point of looking at the fourth jurisdiction.
But this blog post has become much too long for tonight. A smarter Kat would have opened a forum here throughout the process of this paper. Expect more in the next couple of days. I know you’re excited; you don’t have to tell me!