Just A Thought

[debka_notion]

I'm running off to mincha and class, but here's a cool thought. I was just reading about philosophy and law and their difference over the value of the idea of precedent. One of the theories brought is that precedent allows law to create an equality between people, because it would be unfair to give different responses to different people just because they happen to live at different times, and thus precedent creates a standing response to the same situation, so that time does not cause two otherwise parallel cases to be judged differently. Well, presuming that Torah is divine law, this fits beautifully with a view of G-d as being able to deal with time as a dimension like any other, i.e. for G-d to potentially be "outside" of time as we experience it, which is an idea that has always made a lot of sense to me.

Comments

[spazerrific.livejournal.com]

The problem with precedent (and common law in general...) is that it can be overturned. Well, depending on which side you are on this could be a problem. If you're on the side of knowing what's going on, yeah, it's great. If you're on the side of our social consciousness has evolved past this, it's not as fantastic. Precedent also doesn't necessarily cover all the bases (for Roe v. Wade, the court kinda had to pull the precedent out of its ass). I guess, if we relate the Torah to law... (here are those fun analogies from the SAT) Constitution : Supreme Court Decisions :: Torah : Commentary. The second explains the first and creates the precedent that everybody relies upon, and then it's up to individual practitioners (judges, rabbis) to actually apply what has been handed down.

Sorry... I can't stay away from a law school discussion, and I'm taking a course this semester that has essentially turned into a philosophy course.

[debka-notion.livejournal.com]

I'm taking a course on jurisprudential theory and halakha, so- you're basically summing up a lot of what some of the articles that I've been reading have been saying. So yes, precedent is both very powerful and very difficult when you want to actually revise something. As my teacher would say, in order to change something, you need to make something that seems like an easy case, and therefore follows precedent precisely, into a hard case, so that the judge/rabbi can apply his own discretion to the decision, and establish a new precedent.

The problem, from that view point, is that sometimes the law is just too precise, and you can't find a way to argue that it doesn't quite apply... (Alternatively, this is the proof that you're staying within the system rather than just playing fast and loose with it.)

[spazerrific.livejournal.com]

heh... clearly you haven't been to law school :-p Somehow - and granted, I don't understand how sometimes - someone will ALWAYS be able to find a distinction. It's one of the skills we learn... how to make cases that are a stretch apply, and how to make cases all-to-on-point not apply. It's a fun game (though some of the ideas on both ends seem coming from way out of left field...) but, as an exercise to get an idea of it, try taking two cases or what have you, and make the second one apply to the first, and then see if you can differentiate the second from the first. You'll probably be able to do both b/c it's really rare that you find something exactly on point.

[http://users.livejournal.com/lipman-/]

"precedent allows law to create an equality between people" etc. - isn't that true for, well, laws, too, in democracies?

[debka-notion.livejournal.com]

Well, the article I was reading wasn't specifically about religious law, so yes. I was just putting together some different things going on in my head that connected well...