Unlike Catholics, we Jews maintain a body of laws that is open to constant reinterpretation. It requires re-reading every generation, because the rulings of yesteryear may be irrelevant today. For countless generations, the best and brightest sat in dimly lit rooms and discussed the finest points of a particular text, while contextualizing it against everything else that was written prior to and since then.
Last night I attended a presentation by Stephen Breyer, one of the current United States Supreme Court judges. He described the case of Dred Scott, a slave who sued for his freedom in 1857, and lost because he was deemed “property” …which the constitution guaranteed could not be taken from a citizen without due process. Scott was not considered a citizen. The case is considered by most to be the worst decision ever handed down by the Supreme Court, and was in part responsible for ultimately causing the Civil War.
The jury is still out on how history will feel about Bush v. Gore in 2000, a decision Justice Breyer was on the bench for (though on the dissenting side). He made the point that the true test of a court is when it has to make an unpopular ruling.
He explained the wonder of the Supreme Court is the way society has internalized the law. Even though a numeric majority had ruled for Gore, the various courts studied the law, and declared George W. Bush the winner of the Presidential election. The point is that there was no civil war. People heeded the ruling.
The Supreme Court does not control a militia that would enforce its rulings.Society could just choose to ignore the court. But society acquiesced.
In some sense, the Rule of Law is humanity’s greatest achievement. For several thousand years we followed the various rabbis and high priests as they spoke their edicts or issued their interpretations, but over time we have replaced biblical code with civic code. It has become easy to ignore the rules passed down by rabbis, society has externalized religious law. But our civil laws are a true accomplishment. They work because each respective society has fully bought into its own body of law. German law (and German society) differs from the U.S. in some ways of course, but there’s a lot of common ground. After the presentation, Dieter Grimm, one of Germany’s former constitutional Justices, joined Justice Breyer for an answer-and-question session. As expected, there was some discussion about difficult German rulings, such as the ones covering German Unification, and the Bundeswehr’s mandate in Afghanistan.
Of course, a society needs to be part of the code that it builds for itself. You cannot simply walk into a country (like Afghanistan, for instance), hand the people a set of law books, and then expect them to create a civil society that mirrors the books’ origin. Such a society must build its own laws, and test them in adverse situations. Only then can it build a strong social foundation.
But one thing is clear to me: our smartest legal minds no longer sit in prayer rooms or at the rabbi’s dining room table. They meet in the judge’s chambers, and at the law schools.
… and it was a rare opportunity – and quite fun – to sit with one today’s “learned rabbis”. He’s a smart guy, and a good teacher.