Legal Commentary

I am a few days late commenting on Dan's pre-Yom Kippur post considering the link (or disconnect) between what we do as secular law professors and a higher calling to be a mensches. Ironically, the rabbi's sermon where Jen and I went to synagogue (at her childhood synagogue in Baltimore) was on a related issue--the link (or disconnect) between Jewish law ("Halakhah") and secular law. A few interesting tidbits:

First, the funny point. The famous frieze on the Supreme Court building depicting historic "lawgivers" (not religious figures, because otherwise we would have to create a coherent Establishment Clause doctrine) includes Moses holding the Decalogue. The problem, as the image at right shows, is that Moses' long, flowing beard covers the Hebrew word "lo," which means no, or in context, "Thou shalt not." In other words, the visible portion of the tablet says "Murder" and "Commit Adultery." Oops. 

On a serious issue, the crux of the sermon was about how Jewish law can fill and guide our secular lives and how Jewish law and secular law operate compared with secular law. Jewish law is full of affirmative commands--things we ought to and must do to make the world and our lives better. On the other hand, secular law operates wholly negatively--telling us what we should not do and the consequences/punishments if we do them. The rabbi said he spoke with many lawyer friends in advance of the sermon and asked them to name some common laws positive-obligation laws, laws that require people to do something; the only thing anyone could come up with was pay taxes and (for men) register for Selective Service, along with a few places that have some sort of Samaritan Law. Other examples? I quickly tried to think of some while sitting there, without much success. Maybe "attend school" (for non-Amish minors)? "Purchase health insurance." "Disclose certain information to police in certain life-threatening situations" (think of those "mandatory report" professionals obligated to inform police of suspected domestic violence). Can anyone come up with others?

Or perhaps the positive/negative distinction really is beside the point. It seemed to me that the sermon missed the incentivizing function of negative legal rules, which winds us up in the same place. A prohibitory rule functions (or at least is designed to function) as an incentive for people to engage in the beneficial behavior society wants to encourage. Thus, a legal rule establishing liability for workplace harassment incentivizes the establishment of an equal workplace. A legal rule voiding a contract where a party fails to disclose material information incentivizes sharing of information and thus a fairer contracting process. A legal rule prohibiting the making of an unsafe car incentivizes the manufacture of safer cars. The difference, of course, is that negative rules only function via the threat of enforcement--the incentive to avoid the punishment/negative consequences by conforming conduct. But if the result is the same, does it make a substantive difference if the rule is stated in the negative ("Don't make an unsafe car" "Don't hide evidence or pursue criminal charges against innocent people") or the positive ("Make a safe car" "Pursue justice")?

Or does the sermon draw a false equivalence between secular and Jewish law, because they necessarily serve different functions? You cannot run a complex earthly, human society solely through positive commands, only through a system of prohibitions that can be enforced. The positive commands of Jewish law fill-in the gaps, providing additional guidance on how to act within the broader system of negative rules. And that gap-filling is important and something we should strive to obey more--echoing Dan's grandmother's command to be a mensche. But it is ultimately unenforceable, at least in the earthly context. It thus cannot form the central set of legal rules governing society.

One last point: The rabbi asked for a show of hands from the attorneys in the audience. I looked around and saw about 25-30 hands go up. At a synagogue on Kol Nidre? Seemed low to me.