Contrasts in American
Contrasts in American and Jewish Law
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.