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Friday, May 24, 2013

Non-State Law Beyond Enforcement

So I've been a bit behind in posting as I slowly drag myself toward the grading finish line (aside: thanks to all my Prawfs' Facebook friends who have been regularly taunted me by noting how long ago they finished grading.  I get it - I'm slow).  But today I wanted to post again about non-state law, focusing on what it might mean to be law even when the law in question is not enforced.

As an example of this dynamic, I've been reading some advanced chapters of Chaim Saiman's forthcoming book Halakhah: The Rabbinic Idea of Law (Princeton U. Press).  One of the key questions Saiman tussles with in the book - and also addressed in his public Gruss Lecture in Talmudic Law - is why there are multiple Jewish legal doctrines which the Talmud expressly states are not intended to be enforced in any circumstance.  As examples, Saiman notes how regarding doctrines like the "rebellious son" and the "rebellious city," the Talmud states the "law never did, nor ever will apply."  In response to questions as to why there exist laws that are not intended to be enforced, the Talmud simply responds "To study and receive reward."

Saiman's book interrogates this response, exploring what it means to have "studied law" as opposed to "enforced law" - and by extension what it means to be unenforced law.  Much of his analysis revolves around contrasting philosophical inquiry and legal inquiry, with the latter funneling the reader into concrete application of core values (in ways that abstract philosophical inquiry often does not) and requiring the reader to inhabit a particular religious world that can more effectively convey principles and values.  

In this way, his project is a quintessential example of how the discursive practice of law - and not merely the enforcement of law - serves a unique legal purpose.  It is the concrete and detailed method of legal analysis the pulls the reader into the legal text - much like a novel pulls the reader into a narrative - that captures a key facet of how Jewish Law functions as law (one hears strong elements of Robert Cover in Saiman's analysis).  Moreover, it also provides important guidance to thinking about the internal elements (as opposed to external manifestations) of law and legal practice - a topic which I hope to explore a bit further in my next post.

Posted by Michael Helfand on May 24, 2013 at 02:04 PM in Legal Theory, Religion | Permalink

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I have obviosuly not read Saimon's book, so forgive me if my comment is directly addressed in his text,

Based on your preliminary review of his forthcoming publication, I question whether the application of "to study and receive reward" can provide a model for how "studied law" has a "unique legal purpose." That particular quote from the Talmud clearly refers to study for the purpose of receiving and reward for Torah study - any alternative explanation is merely allegorical at best - and such reward is not readily comporable to the end result from studying secular legal doctrine in an of itself. The Rabbinical "slogan" of this patch of law is limited to the subject at hand - namely, receiving "religious points" and should not be extended further.

Said perspective does not discount the fact that legal study does have some inherent value - of course certain types of discourse can be engaging and meaningful- but this preliminary review seems to demonstrate the Saiman painted a Talmudic expression with broad strokes, to justify the profession of legal academia.

Posted by: Jacob Lewin | May 24, 2013 4:49:31 PM

Of course, we have conventional law that is also not enforced and perhaps in principle not enforceable -- the guarantee clause is the most obvious example. Are unenforceable Talmud laws and international laws like non-justiciable constitutional rules?

Posted by: Paul Gowder | May 24, 2013 8:20:07 PM

Paul,

I think you're correct that there is some interesting overlap between un-enforced constitutional rules and un-enforced non-state law. One of the questions you would want to ask about the un-enforced constitutional rules is whether it simply happens to be that they are not enforced or whether they are, as you suggest, "in principle not enforceable." If such constitutional rules are in principle unenforceable, then there are a lot of interesting questions to ask about what the purpose of the rules are (maybe, perhaps, they - like their Talmudic analog - are meant to entrench or advance some other set of values and ideals).

That being said, if the un-enforced constitutional rules in question are simply not enforced not as a matter of principle, but just as a practical matter, then they would seem to me to be different fundamentally from the type of un-enforced non-state laws that Saiman is talking about. Regardless, an interesting point to consider.

Thanks,
Michael

Posted by: Michael Helfand | May 31, 2013 2:45:04 PM

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