Friday, July 13, 2007


Build a Fence Around the Law

Every so often you hear people claiming that our legal tradition is mostly of "Judeo-Christian" origin or that it ought to be so and then hear protests from the left that our legal tradition is and ought to remain secular. Aside from the oddness of the claim -- those making the claim often ignore the living Jewish legal tradition or even actively oppose elements of that tradition in their suggested legislative programs and what, anyway, would a (Pauline) Christian legal tradition be? -- in fact, much of our system of law is already in accord with Jewish law.

Is this because our legal tradition is indeed of Judeo-Christian origins? Is there some secret Jewish plot to take over America? No. The concordance of Jewish and secular law probably relates to the fact that there are only so many ways of constructing a legal system governing a complex, commercial society. I'm no Cartesian who thinks that all my philosophical beliefs can be deduced by pure reason, nor am I a Kantian (although I agree with Kant about much) who, while critiquing pure reason nonetheless thinks that a few basic principles are sufficient to deduce morality without recourse to some degree of heteronomy, but still, I imagine that legal systems are, at some level, relatively unique and hence (well, I'm forgetting too much of computability here, so pace Tarski, Godel and all the rest) deducible in some way from not so many first principles.

But there are, as we have discussed here previously, many points of difference between Jewish law and secular law. Jewish law assumes a certain degree of obligation of Jews to each other that we as Americans simply do not assume toward each other. Jewish law allows for a far more activist judicial system, especially in terms of asserting consumer protections, than most Americans would be comfortable with. Indeed, some of the most vocal proponents of the view that our laws ought to come from the Judeo-Christian tradition are the most upset about some of the most critical features of Jewish law.

However, one feature of Jewish law that has been the beloved by conservatives at least in the religious sphere (and which liberals have tended to find troublesome) is the concept of building a fence around the law. Within Jewish law, the idea is that by forbidding people from doing X, similar to Y, they will be less likely to sin by doing Y. However, as fences multiply are and kept by tradition they restrict the liberty of people to do most things except walk within the few cubits of Halacha.

However, the concept of a fence around the law has other, from a liberal point of view more positive, implications as well. The first implication is that by providing a fence, one also provides sign-posts as to what to do in a situation -- even if one is compelled to walk within the four cubits of Halacha that is better than being paralyzed by not knowing where it's safe to walk. The other implication is that fences around the law can provide for ad hoc reversals of the presumption of innocence where they are needed without undermining that important presumption on the whole.

In particular, sex crimes can be notoriously hard to prove in court. To hear some so-called liberal feminists talk, though, the solution is to always believe the presumed victim. But what of the presumption of innocence? Perhaps the solution is to build fences around our sex-crime laws so that, in these he said/she said cases, there is likely a fence that was transgressed.

And once it is established a fence is transgressed (for which there is still the burden of proof) then the argument could be "if he did X, how do we know he didn't do Y?" Thus, fences allow for the burden of proof to remain with the prosecution but give clear exceptions to that burden. And if you don't want to be imprisoned for a crime you didn't commit because of the lowered burden of proof once you cross a fence, well -- don't cross a fence!

So maybe we can add "build a fence around the law" to the list of Talmudic principles we liberal feminist moonbat types should incorporate into our response -- whenever religious right types say "the law should respect Judeo-Christian principles" -- of "ok ... how about incorporating these principles from a 'Judeo-Christian' tradition into our legal system?".


For those interested in my latest (un-organized) thoughts on moral legislation, see my comments to this post by Ross Douthat re. Wolfe's column on Kirk as well as my comments (to this post by Matthew Yglesias) in regards to Jonah Goldberg's (of all people) good point on liberals wanting to legislate morality.

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