When God is the Legislator
Two of the legal systems we have looked at claim to be based on rules laid down by God—Jewish law on the Torah, Islamic law on the Koran and the (divinely inspired) practice of the Prophet Mohammed. That claim raises problems which are absent, or at least less serious, in legal systems based on the decisions of a ruler or legislator. Similar problems occur with U.S. Constitutional law. The Constitution does not claim to be divinely inspired, but in U.S. legal culture it is often treated as if it were, and although it is possible to change it through human action, the process is cumbersome.
One of the problems occurs when God gets it wrong, when the humans implementing the legal system are reluctant or unwilling to go along with some of the divine commands. Consider, for one striking example, the instructions in Deuteronomy (21:18-21) for dealing with a disobedient son:
“If a man have a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them: Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place; And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all the men of his city shall stone him with stones, that he die:”
The punishment seems a little extreme, not only to modern sentiments but to ancient sentiments as well. If it is, however, God's command, what is one to do?
A similar issue is raised for Muslims by Koran 5:38, which establishes the punishment for the Hadd offense of theft.
“As for the thief, whether man or woman, cut his hand as punishment from God for what he had done1”
A similar problem in U.S. Constitutional law is raised by the Second Amendment, 2 which holds that:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”If we combine this with the 14th Amendment and the doctrine of incorporation, it appears to follow that any law at any level of U.S. Government, federal, state or local, restricting individual ownership of firearms—or, arguably, of tanks, fighter planes or nuclear weapons—is unconstitutional.
In all three cases, authorities of the relevant legal systems have found ways of working around the fixed point created by the nominally authoritative rule. The halakhic scholars did it first. Thus Maimonides, basing his view on the work of earlier authorities, writes of the disobedient son:
He is not liable for
until he steals from his father and buys meat and wine at a cheap
price. He must then eat it outside his father's domain, together with
a group that are all empty and base. He must eat meat that is raw,
but not entirely raw, cooked but not entirely cooked, as is the
practice of thieves. He must drink the wine as it is thinned as the
alcoholics drink. He must eat a quantity of meat weighing 50 dinarim
in one sitting, and drink half a log
of this wine at one time. …
… According to the Oral Tradition, we learned that this law concerns a youth of thirteen between the time he grew two pubic hairs and the time at which his entire male organ is surrounded by pubic hair. After the entire male organ is surrounded by pubic hair, he is considered as independent and is not executed by stoning.
If his father
convict him and his mother does not desire, or his mother desires and
his father does not desire, he is not judged as a "wayward and
rebellious son," as implied by Deuteronomy 21:19: "His
father and mother shall take hold of him."
If one of the parents has had his arm amputated, was lame, dumb, blind, or deaf, the son is not judged as a "wayward and rebellious son." These concepts are derived as follows: "His father and mother shall take hold of him" - This excludes parents with amputated arms" "And bring him out" - this excludes the lame. "They say" - this excludes the dumb. "This son of ours" - This excludes the blind. "He does not heed our voice" - This excludes the dumb.4
It was a matter of debate whether anyone had ever satisfied all the conditions and been stoned.
Islamic scholars followed a similar, if less extreme, strategy. They held that for a starving man to take food was not theft—and that anyone who stole perishable food could be presumed to have done it because he was starving, hence not guilty of the Hadd offense of theft. Taking property that was unguarded did not count,5 so stealing cattle only counted if they were stolen from a barn, or at least from near the owner's residence. Property in a house counted as guarded only against those who had not been invited to enter. The thing stolen must be above some minimal value, and the thief a competent adult. If the thief thought the property was at least partly his—whether correctly or not—it did not count as theft, so it could be argued that theft of public property never counted, since all Muslims were in some sense joint owners. Theft that failed to meet one of these requirements might still be punishable under tazir law but did not require the Hadd punishment of amputation.
In the U.S., a variety of arguments were used to limit the implications of the Second Amendment—in the view of some legal scholars, to essentially eliminate it. The reference to a militia could be interpreted as restricting the right to members of the National Guard—provided one was willing to ignore the broader sense of unorganized militia, consisting, when the Constitution was written, of all adult males, and also ignore the fact that the beginning of the Amendment described a reason, not a restriction. More plausibly, it could be argued that since the purpose was to maintain the militia, only weapons suitable for military use counted. On that basis, it was held that a law banning sawed off shotguns did not violate the amendment.6 As long as a majority of the members of the Supreme Court favored restrictions on firearm ownership, it was always possible to find some basis for justifying them.
A similar issue arose during the New Deal with the constitution's restraint on the power of the federal government. The tenth amendment reads:
“The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”
That appears to make the federal government one of enumerated powers, only allowed to do those things that the Constitution specifies. This raised a problem for an administration that wanted to do things that did not obviously fit into any of the enumerated categories, such as imposing restrictions on agricultural output in order to push up its price. The solution was found in the interstate commerce clause of the Constitution, which holds that: “The Congress shall have Power … To regulate Commerce ... among the several States … .” In Wickard v. Filburn, the government argued that a farmer growing crops to feed to his own livestock was “substantially involved” in interstate commerce, since if he had not grown those crops he would have had to buy feed for his animals and such purchases would have affected the price of feed on the interstate market, hence that the activity could be regulated by the federal government. The Supreme Court, recently threatened with packing if it continued to block New Deal policies, accepted the argument. Cases since—most recently Gonzales v. Raich, which held that the interstate commerce clause justified a federal ban on marijuana produced and consumed within a single state—have very nearly repealed the tenth amendment, since almost anything the federal government wants to do7 can be justified, to a sympathetic Supreme Court, as a regulation of interstate commerce.
These examples demonstrate the ability of legal scholars in three different legal systems to find ways of working around legal rules that they do not have the power to change. In doing so, they have employed a number of different tactics.
In each case, the solution depended on “interpreting” the legal rule in a way that converted it into something closer to what the interpreters wanted. The process begins with the observation that no set of legal rules is sufficiently complete to answer all questions and eliminate all ambiguity, a point illustrated by the failure of the body of statutes of the Imperial Chinese system, very much more extensive and detailed than the rules of the Torah, the Koran, or the Constitution, to do so. It follows that someone must decide, when there are two plausible readings of the rule's implication, which to accept.
Once that principle has been accepted, the next step is to find some basis in the original set of rules to justify, not the particular interpretation, but the unrestricted power to interpret. In the case of Jewish law, the original justification was twofold. On the one hand, Torah explicitly commanded that, when the law was unclear, the opinion of the majority, interpreted as the majority of halakhic scholars or, more specifically, of the Sanhedrin, was to prevail.
One might object that that applied only when the law was unclear, and so could not trump a command as explicit as the one requiring a disobedient son to be stoned, and surely could not justify “interpretations” as far fetched as those used to overrule that command. One solution to that problem was the doctrine of the oral Torah.8 The interpretation of the halakhic scholars might seem implausible, but it was based on what God told Moses on Mount Sinai, passed down in oral tradition to the scholars of the present day, and so had the same authoritative status as the original rule.
Islamic legal scholarship followed an analogous pattern. The law was to be based not only on the Koran but on the practice (sunna) of the Prophet, as revealed in the traditions of what he and his companions did and said. Which traditions were to be trusted was a difficult question, to be resolved by scholarship—and the process could be biased in favor of traditions that supported the interpretations the scholars wanted.9 Further, one of the traditions held that the Muslims would never be agreed on an error—and by suitable interpretation of that, scholars got the doctrine of ijma, according to which, once there was a consensus in favor of an interpretation, the matter was settled.
In U.S. Constitutional scholarship, the Supreme Court's power to interpret the Constitution, even to overrule Congress if it held that Congress was violating the Constitution, originated with Marbury v. Madison, a decision of the Supreme Court. It was made plausible by the obvious need for someone to interpret ambiguities—and once established, could be gradually converted into the doctrine that, for legal purposes, the Constitution was whatever the Court said it was.
A second solution to the problem of working around rules that cannot be changed is to impose the desired rules through some mechanism to which the rules do not apply. Thus halakhic scholars defended the right of communal authorities in the diaspora to do things explicitly forbidden by Torah and/or previous rabbinic law on the theory that they had authority inherited from the kings of Israel, who had enforced their own law in a fashion clearly inconsistent with the constraints of religious law. Similarly, Islamic rulers created their own courts, outside of the courts that enforced Sharia, and used them to enforce rules inconsistent with the rules of Sharia, for example by convicting defendants without the eyewitness testimony of two Muslim witnesses, which Shari'a in most contexts required. The equivalent in U.S. Law is the use of the regulations of executive agencies to create the equivalent of laws without requiring congressional authorization.
So far I have been focussing on one problem created by divine legislation—dealing with cases where God got it wrong, at least in the view of those interpreting and enforcing the law. A second problem is how to maintain judicial uniformity. What happens if two halakhic scholars, both judges, disagree about the interpretation of Torah? What they are disagreeing about is not what the law should be but what it is—and truth is not determined by majority vote. If each follows his interpretation, the result is a legal system where what outcome you get depends on which judge you go to.
The solution to that problem is, arguably, the point of the story of the furnace of Akhnai. The instruction in the Torah to deal with ambiguous questions by accepting the view of the majority was interpreted to mean that, while the truth was not determined by majority vote, the law was. A judge who held to a minority interpretation after the Sanhedrin had voted it down was entitled to continue to argue for his position, but to judge actual cases according to it was a criminal offense. It was an offense that led to Rabbi Eliezer being banned, despite the strongest possible evidence—the literal voice of God—that his view was correct.
That solution depended on the existence of the Sanhedrin, or some other well defined body of voters to decide legal disputes. The Sanhedrin gave its last decision in 358 A.D. Thereafter, legal uniformity depended on judges in the diaspora agreeing about what authorities they were willing to accept. The eventual result was the breakdown of legal uniformity, with different communities accepting the doctrines of different scholars, and with a good deal of law made by local communal authorities. The problem was ameliorated by the fact that most legal controversies were intra-communal, and so under a single set of rules.
Islamic law never had a similar doctrine of majority rule, with the result that differing interpretations were allowed to coexist and, in the form of the four orthodox schools of Sunni law, still do. But the doctrine of consensus at least provided some basis for the claim that certain issues had been settled, and so could not be reopened.
In U.S. Law, the authority of the Supreme Court provides, at least in principle, a solution to the problem. As with the Jewish case, law need not, and often is not, consistent across states, or even across federal circuits, although, in the latter case, inconsistencies seen as problematic provide a basis for Supreme Court review to eliminate them.
As these examples show, the problems of divinely inspired law, and the solutions, are similar across a considerable range of societies and legal systems.
1 There is some dispute as to the exact meaning of the words used, but this is the usual reading. Questioning the exact meaning of words is one of the tactics for working around such fixed points.
2 The first ten amendments, commonly referred to as the bill of rights, were passed along with the original Constitution.
3 There has been dispute as to how much of the Bill of Rights is incorporated. McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 (2010) was the first case in which the Supreme Court held that the Second Amendment was incorporated via the 14th Amendment, and so applied to state governments as well as to the federal government.
4 This only a partial list of the conditions Maimonides states in Mishnah Torah, Mamrim 7:1-12.
5 While this sounds odd, it corresponds to the rule in U.S. trade secret law that in order for information to qualify as a trade secret it must be protected. In both cases, protection arguably is needed to provide notice to the appropriator that the secret, or cow, is actually claimed as someone’s property.
7 One exception was United States v. Lopez, which held that the interstate commerce clause was not a sufficient basis for a federal law that made it unlawful for any individual knowingly to possess a firearm at a place that he knew or had reasonable cause to believe was a school zone.
8 1 All the commandments that were given to Moshe at Sinai were given together with their interpretation, as it is written "and I will give thee the Tables of Stone, and the Law, and the Commandment" (Exodus 24,12). "Law" is the Written Law; and "Commandment" is its interpretation: We were commanded to fulfill the Law, according to the Commandment. And this Commandment is what is called the Oral Law.
2 The whole of the Law was written down by Moshe Our Teacher before he died, in his own hand. He gave a scroll of the Law to each tribe; and he put another scroll by the Ark for a witness, as it is written "take this book of the Law, and put it by the side of the Ark of the Covenant of the LORD your God, that it may be there for a witness against thee" (Deuteronomy 31,26).
3 But the Commandment, which is the interpretation of the Law--he did not write it down, but gave orders concerning it to the elders, to Yehoshua, and to all the rest of Israel, as it is written "all this word which I command you, that shall ye observe to do . . ." (Deuteronomy 13,1). For this reason, it is called the Oral Law.
(Maimonides, Mishnah Torah, Introduction)
9 “In nothing do we see learned men more prone to untruth than in the fabrication of Traditions.” Quoted in Mohammed’s People, p. 242.