Judaism and the Foundations of American Law -- Part 4

Some may suggest that the works of Dimont, Cahill and even Professor Dershowitz do not rise above the level of popular treatments of the subject, and therefore, do not marshal sufficient scholarly evidence to under gird the thesis to which each contributes. Although I believe that these three do provide not only a solid introduction to the subject of Judaism’s influence, both indirect and direct, upon the development of concepts of justice and law that are integral to the American legal system, but also a substantial elucidation of the same, still other scholars have examined these relationships to an even deeper degree.

Outstanding among these who are engaged in the scholarship in this area is Bernard Jackson, Alliance Professor of Modern Jewish Studies at the University of Manchester in England. Professor Jackson along with Phillip Alexander serve together there as the co-directors at the University’s Centre for Jewish Studies.

In his article “‘Law’ and ‘Justice’ in the Bible”, Professor Jackson notes that “when we examine the charges given to judges in the biblical sources, we find a conspicuous absence of reference to any duty to apply codes or rules of positive law. Rather, the charges to judges . . . are characterized by two demands: to avoid corruption and partiality [and] to do ‘justice’” (222-23). He further explains that the source of the ‘justice’ these judges are to apply is not delineated by specific rules or regulations, but rather, he argues is found in a mixture of custom and personal intuition where that intuition is viewed as inspired by God. (223).

He cites Moses’ decision in the case of the daughters of Zelophehad, recorded in Numbers, chapter 27, as a prime example of the administration of this concept of “justice” in the activity of adjudication. In that case, the daughters requested the right to their father’s inheritance in the land even though he had died without any sons. Upon their submission of this petition to Moses, the account in Numbers then tells us that “Moses brought their case before the LORD.” (27:5) God explicitly instructs Moses to grant the request and further provides guidelines for similar cases in the future.

Jackson uses this example to demonstrate that “justice” in Torah is not the same as positive law. Rather the demands of justice, as informed by God as an external, higher authority, may require exceptions to or changes of positive law. Here Jackson agrees with and lends support to Dimont who, as we noted above, had concluded that positive laws were to be vehicles for justice, but laws without justice were considered immoral.