In studying Jewish law for a course I taught on legal systems very different from ours, later converted to a book, I came across the story of the oven of Akhnai. It starts with a dispute of the sort only legal scholars indulge in. An object of clay such as an oven that had been rendered impure, polluted through some agency such as contact with a corpse, could be purified by being broken up. The question was whether a clay oven that had been broken up and then reassembled with sand between the pieces was ritually pure or impure.
“A judge or law professor is free to argue for his interpretation of the Constitution but once the Justices of the Supreme Court have voted on the subject lower judges are required to rule according to its vote. “
Required in what sense? In other words, what happens if they don’t? Sometimes they get overruled, which they don’t like. But not always. What happens to judges who are loose cannons?
A slightly less pleasant interpretation of this story might be as follows:
Just because something is true does not mean people will react productively when they learn it.
One major blind spot of the smart/rational people is their difficulty conceptualizing how us stupid, irrational people think.
A smart person is no doubt irritated by things like lies, fallacies, myths and inaccuracies. But these things are often necessary to direct the behavior of us stupid people in productive or otherwise desirable ways.
To use the biblical phrase from the Talmud we "are not of heaven". When heavenly knowledge mixes with our earthly (i.e. flawed) minds, the result can be abominable.
One example of this occurring is what happened to Karl Marx. He became so disgusted with the way the masses were mutating his ideology that he went on to declare "I am not a Marxist".
I will try to clear up some confusion over my objections to precedent. Probably won't succeed; more likely to introduce new confusion, but what the hey ....
Split appeals court decisions are immoral. The idea that learned judges can spend months arguing over some fine point of law and still not agree, while ordinary people are expected to understand such results instantly, and before the learned judges weigh in months later, is disgusting. I would throw out laws which judges disagree on, and tell the legislators to try again. I would not allow judges to cut out or reform part of the legislation, because legislation is the result of many legislators compromising, with the public chipping in, and for judges to replace all that with their own personal opinions is a travesty.
Precedent, in my understanding, is inferior courts having to follow interpretations established by superior courts, often involving split decisions. I understand the theoretical benefit of avoiding differing verdicts for similar cases, but I disagree that it is good policy. If similar cases in districts A1 and A2 have differing verdicts, precedent rides roughshod over the differences, relying on the superior wisdom and experience of appeals court A. But common law is supposed to rely on judges discovering law by interpolating new law from related law which is nevertheless inexact. When appeals court A establishes precedent, they are in effect telling judges A1 and A2 to stop interpolating to discover that subtle variation. They are also telling all inferior A* judges to stop interpolating, to stop discovering new law, to stop allowing for slight variations.
They are suffocating justice.
This is just the same as socialism. The only way a government can efficiently allocate all resources -- labor, capital, raw materials -- is with a static society, where no one ever retires, dies, gets sick, or is born; where weather and natural disasters never disrupt anything; and where no one ever thinks up a better way to do things, or wants to do anything different.
Both precedent and socialism must freeze the current conditions. Any independent thinking is verboten. Any upset from different conditions throws the whole process into confusion. A landslide blocked a railroad? Oh Noes What Shall We Do? A kid stole a car and returned it intact an hour later? Oh Noes How Can We Shoehorn This Into An Existing Old Law Once Precedent Has Been Set?
Thanks for the side by side comparison of US, Islamic, and Jewish legal thought. I could read about this all day.
I am just curious - do you ever read the original, or do you always use a scholarly translation? The website isn't clear about who wrote it, citing unnamed "scholarly rabbis". Is that as opposed to rabbis who are not scholarly, or do they mean rabbis who engage in academic scholarship?
I view every translation as a commentary, which in legal stories like this one can significantly change the understanding.
"Better that they risk getting the law wrong than that they end up disagreeing in their judgments."
I am of the complete opposite opinion. I detest precedent. Better to continue having dissent and discussion on the path to genuine honest consensus than lock in a possibly wrong answer which precludes further useful discussion, including further proofs that the answer is indeed correct.
"A scholar who disagreed was free to argue for his position ..." is nice words, but meaningless. Without the pressure of having no consensus, and with the pressure of not bucking the system, the current winners have no incentive to continue discussions, and every incentive to stifle it.
Precedent is like socialism: both require and create a static ecosystem, suffocating all progress. I'd rather continue having mixed rulings, encouraging discussion, innovation, and progress towards an honest consensus.
Typos in the footnote.
Should be "Mishneh" not "Mishnah" and "Yesodei" not "Tesodei."
“A judge or law professor is free to argue for his interpretation of the Constitution but once the Justices of the Supreme Court have voted on the subject lower judges are required to rule according to its vote. “
Required in what sense? In other words, what happens if they don’t? Sometimes they get overruled, which they don’t like. But not always. What happens to judges who are loose cannons?
Excellent post
I like just about anything that cites Maimonides. Some very rabbinical arguments here or I suppose Christians would call them Jesuitical.
A slightly less pleasant interpretation of this story might be as follows:
Just because something is true does not mean people will react productively when they learn it.
One major blind spot of the smart/rational people is their difficulty conceptualizing how us stupid, irrational people think.
A smart person is no doubt irritated by things like lies, fallacies, myths and inaccuracies. But these things are often necessary to direct the behavior of us stupid people in productive or otherwise desirable ways.
To use the biblical phrase from the Talmud we "are not of heaven". When heavenly knowledge mixes with our earthly (i.e. flawed) minds, the result can be abominable.
One example of this occurring is what happened to Karl Marx. He became so disgusted with the way the masses were mutating his ideology that he went on to declare "I am not a Marxist".
I will try to clear up some confusion over my objections to precedent. Probably won't succeed; more likely to introduce new confusion, but what the hey ....
Split appeals court decisions are immoral. The idea that learned judges can spend months arguing over some fine point of law and still not agree, while ordinary people are expected to understand such results instantly, and before the learned judges weigh in months later, is disgusting. I would throw out laws which judges disagree on, and tell the legislators to try again. I would not allow judges to cut out or reform part of the legislation, because legislation is the result of many legislators compromising, with the public chipping in, and for judges to replace all that with their own personal opinions is a travesty.
Precedent, in my understanding, is inferior courts having to follow interpretations established by superior courts, often involving split decisions. I understand the theoretical benefit of avoiding differing verdicts for similar cases, but I disagree that it is good policy. If similar cases in districts A1 and A2 have differing verdicts, precedent rides roughshod over the differences, relying on the superior wisdom and experience of appeals court A. But common law is supposed to rely on judges discovering law by interpolating new law from related law which is nevertheless inexact. When appeals court A establishes precedent, they are in effect telling judges A1 and A2 to stop interpolating to discover that subtle variation. They are also telling all inferior A* judges to stop interpolating, to stop discovering new law, to stop allowing for slight variations.
They are suffocating justice.
This is just the same as socialism. The only way a government can efficiently allocate all resources -- labor, capital, raw materials -- is with a static society, where no one ever retires, dies, gets sick, or is born; where weather and natural disasters never disrupt anything; and where no one ever thinks up a better way to do things, or wants to do anything different.
Both precedent and socialism must freeze the current conditions. Any independent thinking is verboten. Any upset from different conditions throws the whole process into confusion. A landslide blocked a railroad? Oh Noes What Shall We Do? A kid stole a car and returned it intact an hour later? Oh Noes How Can We Shoehorn This Into An Existing Old Law Once Precedent Has Been Set?
Thanks for the side by side comparison of US, Islamic, and Jewish legal thought. I could read about this all day.
I am just curious - do you ever read the original, or do you always use a scholarly translation? The website isn't clear about who wrote it, citing unnamed "scholarly rabbis". Is that as opposed to rabbis who are not scholarly, or do they mean rabbis who engage in academic scholarship?
I view every translation as a commentary, which in legal stories like this one can significantly change the understanding.
"Better that they risk getting the law wrong than that they end up disagreeing in their judgments."
I am of the complete opposite opinion. I detest precedent. Better to continue having dissent and discussion on the path to genuine honest consensus than lock in a possibly wrong answer which precludes further useful discussion, including further proofs that the answer is indeed correct.
"A scholar who disagreed was free to argue for his position ..." is nice words, but meaningless. Without the pressure of having no consensus, and with the pressure of not bucking the system, the current winners have no incentive to continue discussions, and every incentive to stifle it.
Precedent is like socialism: both require and create a static ecosystem, suffocating all progress. I'd rather continue having mixed rulings, encouraging discussion, innovation, and progress towards an honest consensus.