Monday, August 14, 2006

Thoughts on Law, the Bible, and Conflict

The practice of creating laws is horribly flawed.

Suppose you have a simple law such as: "Anyone smoking in this building receives a $25 fine." That sounds clear enough, right?

Well, no, because the first thing that happens is that you have to clarify what you mean by smoking. Smoking what? You can clarify "tobacco products", but what if you smoke a cigarette made from 90% dried mint and 10% tobacco. Does that count? So you need to add more clarifications.

Well, what if you smoke right near the room and the smoke drifts in? What if you smoke inside and the smoke drifts out? What if you have a smokeless cigarette? What if it is mostly smokeless? What if nobody else minds? More clarifications.

The original law looked like a solid black line. As you peer closer and closer, you see that the line is made of alternating bands of gray very close together. Keep getting closer and the line just looks like bands of darker and lighter areas.

The problem here is that the original "law" honestly doesn't give a damn about whether or not you smoke in this room. The principle behind the law is: "Don't disturb other people." That principle isn't enforceable as a legal code.

We start with civilization and manners. That is our hopeful ideas. When we fail to enforce this ideal, as we always will, we create laws that either under-represent this ideal - in which case, some "disturbing" activities are still permitted - or over-compensate for this ideal - in which case some activities that do not disturb other people get swept into the law for simplicity.

In an ideal situation, everyone would simply not disturb other people. In a second-tier ideal situation, every action would be judged against the basic principle. Instead, our laws come to define lines that are never exactly correct, but try to get closer and closer to correct the more baroque the law becomes.

The basic problem with this approach is that we hit a point somewhere where our attempts at refining the laws further and further begin to have the exact opposite effect. Too many people are still being disturbed, despite these laws, and too many people's freedoms are being unnecessarily restricted, and they begin to rebel. And no one can understand the law.

What we need is an occasional clean sweep, where the laws are re-written from scratch.

Only, that offers its own set of problems, namely, the reasonable ability to know what the law is. If the law changes constantly and radically, a general citizen can't know if what he or she is doing is legal or not with any certainty, and also can't plan for the future with any certainty. Ugh. No wonder we have all of these lawyers.

Interestingly enough, the Jewish legal system is slightly different from the above "precedence" system. In the above system, new laws are constantly created and then folded back into the system. A law made in 2002 has as much status as one made in 1778.

In the Jewish system, the biblical laws are immutable, and you may not add or subtract from them. What you can do is re-interpret them, add fences around them, and add local temporary injunctions, according to certain set principles. In theory, and mostly in practice, one generation takes the previous generation's interpretations and fences very seriously. However, very occasionally, modern authorities can throw out some crufted law and go back to the original biblical law for some reason.

One kind of gets the feeling that the biblical prohibition against adding and subtracting from the law was a kind of insult to mankind. It's as if God knows that we can't be trusted to make laws without eventually mucking it up. The entire idea can only work if the core laws contain everything necessary to deal with all eventualities, both in interpretation and breadth of topics.

That's a pretty difficult idea to sell. Our attitudes towards women, slavery, gays, children, property, and many other things have changed. While I believe that interpretations about the bible can keep up with this, there are certainly many who don't. Many people want to discard the bible because it doesn't fit with our current ideas of morality. Many people want to discard our current ideas of morality because they don't fit with the bible. And many people say that if you can interpret the bible any way that you want, what is its point?

I think its point is that the engagement has to be constant. Laws will always need to be reinterpreted, but many core ideas cannot be lost. If you leap only from point to point, you will eventually be lost. But if you come back to your starting point, you will always have a common touchstone. And maybe you will interpret a law one way in this generation, and the other way in the next generation. But you are always starting from a place of solidity.

I think that there is also another message inherent to this issue, and that is in the limits of human rationality to solve problems. We all seem to believe that if we can just get the other person to understand our point of view, that they will eventually agree with us, or, at least, respect our position.

If we take the pro-abortionists and the anti-abortionists and get them to see that their differences are about whether or not they do or don't take a strict interpretation of the bible, surely we can get them to realize about what they fundamentally disagree, and then they will be able to work out some sort of compromise.

If we get the Muslims and the Jews, or the Muslims and the West, to sit down and methodically list what they agree on and what they don't agree on, and how to live with each other anyway, then we will be able to negotiate a livable solution.

I'm very cynical about this way of thinking. I think that at the heart of all issues lies not clarity, but confusion. The closer you examine lines, the more they look like areas of darker and lighter gray. It seems that the heart of all life is not an ultimate meeting of the minds, but confusion, conflict, and struggle. And we may have to live - and die - with that.



Unknown said...

Very interesting and insightful article.

Anonymous said...

Yehuda, great articles as always! I enjoy both the quality of your writing and your fresh take on relevant issues.

Yehuda Berlinger said...