Conservadoxy

[onionsoupmix]

With several notable exceptions,  Orthodox Jewish law has been frozen for the past 1600 years.

There is no Sanhedrin and no governing body and no one leader can take it upon himself to authorize important and needed changes. Instead, we all just cling to traditions passed down over the centuries and convice ourselves that this is authentic Judaism

Comments

Comparing Halakha to US Law - Useful Model, But Has Its Limits

[ymarkov]

(From "The Horizontal Society", Appendix 10)

A good model for the Rabbinic System is the Internal Revenue Code of the USA. The Code itself is drafted by the Congress, the legislative branch of government. In this sense, it parallels the Written Law. All income tax rules must ultimately find a source in the Code and apply the rules by its authority. In applying the Code we need to consult the “Treasury Regulations,” paralleling the Mishna. The regulations, however, are not drafted by the Congress, but by the Department of Treasury (nobody knows for sure, but it is probably a part of the Executive). As with the Mishna, the “Regulations” constitute the official perush of the Code. To apply the Code one must consult with the “Regulations,” just as one must consult the “Regulations” of the Mishna, before applying the law of the Pentateuch. In addition, there are “Court Rulings,” issued by the Judiciary (not the Executive). They are similar to the Rabbinic Court of the Talmud reviewing the regulations of the Mishna. Generally, a Court will not disagree with a “Regulation,” and would limit itself to resolving specific issues brought before it. For instance, “Treasury Regulations” require the taxation of “income.” The Court could decide if a particular item constitutes “income” for tax purposes, but it would not rule on what is not income. For our purpose, there are also “Revenue Rulings” by the IRS (treasury) that, like the Talmudic Court, will adjudicate on specific questions submitted before it, e. g., whether an entity is a corporation or a partnership. Finally, there is the “General Counsel Memoranda” issued by the attorneys of the Internal Revenue Service. Although technically lacking authority, the memoranda, like the decisions issued by the posqim are practically binding, in the sense that they are an accurate description of what the Internal Revenue Service ruling will be. [...]

There is one major difference between Tora - as the basic constitutive document of the Jewish Nation and the US Constitution. The Judicial authority to interpret and review the Tora by the Supreme Court is explicitly authorized by a provision in the Tora (Dt 1 7:8-13). The authority of the US Supreme Court to interpret and review the Constitution is not enumerated in the Constitution, but, rather, derives from its own ruling, Marbury v. Madison, in which it assumes judicial supremacy in constitutional interpretation and the authority to impose its constitutional interpretations on other branches of government. The difference is huge. The inability of Jews to assimilate to other political, religious, or legal systems is a corollary of having rejected the notion that authority is the effect of power; that is, violence.

Full quote here.

Re: Comparing Halakha to US Law - Useful Model, But Has Its Limits

[onionsoupmix]

The Judicial authority to interpret and review the Tora by the Supreme Court is explicitly authorized by a provision in the Tora (Dt 1 7:8-13). The authority of the US Supreme Court to interpret and review the Constitution is not enumerated in the Constitution, but, rather, derives from its own ruling, Marbury v. Madison, in which it assumes judicial supremacy in constitutional interpretation and the authority to impose its constitutional interpretations on other branches of government. The difference is huge. The inability of Jews to assimilate to other political, religious, or legal systems is a corollary of having rejected the notion that authority is the effect of power; that is, violence

I don't understand why this difference is considered so critical, please explain.

Re: Comparing Halakha to US Law - Useful Model, But Has Its Limits

[ymarkov]

I think he's saying that the USSC has seized the power it holds, and has kept it since because it's convenient for the rest of the power structure. The result is benign, but different from how Jews established their legal governance, that is, by people's choice and against the "might makes right" principle. Thus, the future rabbis have always been drawn from the entire societal spectrum, while judges appointed by the power structure are not to be considered such.

(This is a point he's making through the entire book, so this is only a small part.)

Re: Comparing Halakha to US Law - Useful Model, But Has Its Limits

[sethg_prime]

The Constitution vests the "judicial power of the United States" in the Supreme Court and its subordinate courts in Article III, and declares itself to be the "supreme law of the land" in Article VI; I find it hard to see how these clauses could not be construed to give the Supremes the power to invalidate laws that conflict with the Constitution.

(And of course numerous constitutional amendments have been passed since 1803, so Congress has had ample opportunity to overrule Marbury v. Madison, and has chosen not to.)