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Contrasts
in American and Jewish Law
Contrasts
in American and Jewish Law
By Daniel Pollack
alumnus of Yeshivat Darche Noam/Shapell's College
Not long ago, I was in Boro Park, Brooklyn, in Eichler's
bookstore. An ordinary scene was taking place. A
father and his young son, observant Jews, were examining
a book on halacha, Jewish law. They were discussing
the merits of the book and whether it was one they
would buy. An ordinary scene, but one which instantly
brought to mind the difference between American
law and halacha. American law deals with "shall"
and "shall not," "do" and "don't." It usually addresses
itself in terms of imperatives. "You must file your
taxes by April 15." "You may not go through a red
light." Halacha also deals with imperatives, but
places imperatives into a context, an ideal. This
context and ideal are part and parcel of halacha,
not distinct from it. Consequently, halacha is taught
to children at an early age, and so, it is not surprising
to see a parent and child jointly deciding whether
a particular halachic book is one they will buy.
They are discussing law in life's context, not law
as a profession to embark on after college.
In contrast, just imagine how strange it would be
to see a non-observant Jewish parent and child in
a bookstore discussing whether or not to purchase
the United States Code Annotated, the compilation
of all federal law. It just wouldn't happen. Americans
minimize their encounters with law; observant Jews
immerse themselves in it. American law and American
citizens take pride in not prescribing legal behavior
in many areas. The Constitution sets strict limits
on the government. There are bright-line boundaries
beyond which we do not want to have legislation
enforced upon us. Halacha, on the other hand, is
comfortable going beyond the boundaries American
law wouldn't think to trespass. Anyone who ventures
into halacha knows that the range of topics discussed
is infinitely wide. From the way one should tie
one's shoes to the proper concentration necessary
for prayer, halacha is not off limits.
Is it a strength or a weakness that American law
is silent where halacha exhorts? It could be argued
that the strength of American law is that individuals
are free to define for themselves all those areas
we like to think of as our zone of privacy. As individuals
we are free to fill our moments, actions, and places
with meaning. If the meaning happens to include
a sense of holiness it is our choice. In halacha,
the goal of every moment, action, and place is seen
as an opportunity for holiness, not just self-defined
meaning. Americans clearly separate the individual
from society, in its legal sense, except where we
specifically want to overlap.
Americans carve out space where law may intrude,
and no further. It's this space that we call "freedom."
If Americans cherish this empty space, halacha lovingly
fills it up. Halacha places God, nationhood, and
individual self-expression within the same parentheses,
with the Torah as their common language. Conversely,
the language used in the Constitution never directly
addresses its audience in a personal way. It is
written for the most part in the impersonal passive
voice. The people are addressing themselves. In
the Bible, with the Ten Commandments being the best
example, God directly and intimately addresses every
individual in every generation. Halacha is expansive
where American law is restrictive; inclusive, where
American law is exclusive.
One of the reasons American law and halacha both
"work" is that they genuinely strive for a sense
of balance. American law does this by leaving individuals
room to find their own equilibrium and steps in
only after-the-fact. Halacha provides guidance from
the outset. Its message is, if you follow these
precepts you won't go off the track at the start.
As Americans, we entitled our founding document
the "Declaration of Independence." While independence
originally meant breaking away from Britain, it
has been recast to mean freedom from government
and freedom to follow out our individual desires.
As Jews, our founding document is entitled the Torah,
the law -- more precisely, God's law for us. It
is a declaration of our interdependence, not independence.
We acknowledge our interdependence on God and our
fellow Jews. As observant Jews and as Americans
we sense that we are on a seesaw, constantly trying
to achieve a sense of balance -- not an easy task,
but one with unlimited rewards.
Excerpted from the "Preface" of "Contrasts in American
and Jewish Law" edited by Daniel Pollack, Yeshiva
University Press, copyright 2001.
Daniel Pollack is Associate Professor at Yeshiva
University's Wurzweiler School of Social Work and
Adjunct Professor at Yeshiva University's Benjamin
N. Cardozo School of Law in New York City. |
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