Volume 55 Number 16
                    Produced: Sun Jul  8  9:41:28 EDT 2007

Subjects Discussed In This Issue: 

Comparative Jurisprudence
         [Jay F. Shachter]


From: Jay F. Shachter <jay@...>
Date: Wed, 4 Jul 2007 18:47:40 +0000 (WET DST)
Subject: Comparative Jurisprudence

In v54n51, one of the contributors to this mailing list made the
following observation:

> ...  My question, however, was about an Eved Canaani.  In this case,
> there seems to be ownership of the person.  In thinking this through,
> I have tried to draw an analogy to a member of the US Armed forces: he
> or she is subject to orders, can be ordered into life threatening
> situations, and can be forced to accept vaccinations.  However, this
> analogy doesn't really work since the armed forces do not "own" the
> soldier's body. 

This is both legally and factually incorrect.  I don't know how much
interest there is in United States law among the international
readership of this mailing list, but the above misstatement is
reflective of three fallacies which may be profitably discussed here.

First, the law.  There are several places where the military law of
the United States recognizes that a serviceman's body is, contrary to
the assertion quoted above, the property of the United States
government.  If two sailors get drunk on shore leave and beat each
other up, they can be charged under the provisions of 10 U.S.C. 908
with the crime of damaging military property.  In fact, the same
charge can apply to self-inflicted harm, even if unintended, so long
as it is negligent.  Thus, a serviceman who, e.g., goes to the beach
on his day off, and gets himself badly sunburned, is subject to a
charge of "damaging military property".  There are several former
members of the United States military on this mailing list (including
at least one retiree who holds the rank of Colonel) so you can confirm
this statement with other knowledgeable members of this mailing list.

There are three errors of thinking that contribute to the above-quoted
misstatement.  One error is the notion that the United States
Constitution (the Uniform Code Of Military Justice is limited only by
the United States Constitution; it is not limited by any additional
rights that may be granted by any State constitution), specifically,
the Thirteenth Amendment, prohibits the ownership of people.  It does
not; it only prohibits slavery and involuntary servitude (except as
punishment for crime).  It does not state that you, or the government,
cannot have a property interest in someone else's person.  In fact,
the common-law torts of loss of consortium, or wrongful death, imply a
limited property right of sorts in someone else's person, and even
full ownership rights are not explicitly prohibited by the Thirteenth
Amendment, only slavery and involuntary servitude.

The second error is the notion that the language of the Thirteenth
Amendment is dispositive.  It is not.  The Thirteenth Amendment,
despite its language, does not guarantee that there cannot legally be
involuntary servitude in the United States.  The courts can find that
the Thirteenth Amendment prohibits involuntary servitude, whereas
other parts of the Constitution permit it, whereupon the courts will
declare that the Constitution is, to a certain limited extent,
self-contradictory, and they will undertake to delineate the
respective spheres wherein each contradictory clause is operative --
i.e., under what circumstances there can be no involuntary servitude,
and under what circumstances there can be.  And even if you cannot
find any clause in the Constitution that contradicts the Thirteenth
Amendment, you are not safe, and you have not been safe since the
black day of Saturday, March 6, 1819, when John Marshall wrote the
opinion in McCulloch v. Maryland (17 U.S. 316), and created the
doctrine of "implied powers", under which powers can be imputed to the
federal government that are not expressly stated in the Constitution.
So, for example, the clause in Article 1, Section 8, which empowers
Congress to raise and support Armies, can be construed to necessarily
imply the power to raise and support armies by means of conscription,
even though conscription is unquestionably involuntary servitude.

The third error is the notion that the United States government, or
any other government, is controlled by laws and by its Constitution.
This is nonsense, and it is pernicious nonsense, because it is always
dangerous to believe that which is untrue.  Read Korematsu v. United
States, 323 U.S. 214, and be forever disabused of the notion that
there is such a thing among the Gentile nations as the rule of law.
There is a certain kind of idiot who weeps over the clause in the
constitution of the Weimar republic that authorized the chancellor to
declare a state of emergency under certain circumstances, as if the
German people would not have killed six million Jews, if only -- if
only -- the constitution of the Weimar republic had lacked that
clause.  The truth is that German people killed six million Jews, and
American people imprisoned their Japanese-American neighbors, because
they wanted to, and what their constitutions said or didn't say did
not matter at all.

The United States federal government can do anything, except for a few
acts that are forbidden to it by the Bill of Rights (see, e.g.,
Gonzales v. Raich, 545 U.S. 1, especially the dissent authored by
Justice Thomas beginning on page 545 U.S. 57).  From time to time, you
hear what appear to be people saying things such as the United States
federal government is a government of enumerated powers, but on closer
inspection it always turns out that the parties uttering those
statements are not people, but extraterrestrial aliens who resemble
human beings morphologically, except that they do not have human
brains inside their skulls.  Instead of a human brain, these creatures
have inside their skull an organ that makes it possible for them to
believe that the interstate commerce clause empowers Congress to
legislate what drugs you may put into your body, and that the slavery
clause empowers Congress to legislate against racial discrimination
(because acts of racial discrimination are the "badges of slavery"),
and that the war clause empowers Congress to build interstate
highways, and that there is something in the Constitution that
empowers Congress to allocate funds for the relief of hurricane
victims, and to fund school lunch programs, and to legislate against
child labor, and to legislate against an 18-hour workday, and to
require employers to provide unemployment insurance, and a minimum
hourly wage.  The truth is that none of these powers is granted by the
Constitution, and no one cares that they are not granted by the
Constitution, and no one, except for extraterrestrials, claims that
they are.

Knowledge of this fact provides important context to a study of Jewish
law.  The Karaite movement was not led by stupid people, and, although
the history is not taught in yeshivot, for a time they encompassed the
intellectual center of gravity of the Jewish nation.  The growth of
this movement was promoted by the quite accurate observation that
Jewish laws, even those laws that are claimed to be Scriptural,
sometimes appear to be very weakly related to the verses claimed to be
the basis for them, like mountains suspended by a hair, or hanging in
midair.  For a superb treatment of this subject -- truly, I cannot
praise it too highly -- the gentle reader is referred to mail.jewish
v43n91 (http://www.ottmall.com/mj_ht_arch/v43/mj_v43i91.html).  But
the last word on a topic is never spoken, and a few more observations
may be profitably made.

Let's look at the exposition of Leviticus 19:14, a verse which
admonishes us not to curse a deaf person.  The halakha is that we may
not curse anyone, neither deaf nor hearing.  Why does the verse
specify a deaf person?  According to Midrash Leqax Tov, it is a simple
a fortiori ("qal vxomer", in Hebrew): if you may not even curse a deaf
person -- who cannot hear your curse -- then surely you may not curse
anyone else.  Leqax Tov, though, it not a basis for halakha, unlike,
e.g., the Sifra, which is used by codifiers like Rambam as a source
for the halakha, sometimes even in preference to the Talmuds.  The
Sifra says nothing about a qal vxomer.  The Sifra also applies this
verse to any person, whether deaf or not, but it states that the
reason the verse mentions the deaf is that a deaf person is
characterized by being alive -- just as you may not curse a deaf
person, who is alive, so, too, you may not curse any other living
person -- i.e., cursing dead people is not prohibited by this verse.
Presumably, if the verse had simply told you not to curse anyone, you
would not have known this, and you might have incorrectly thought that
you were forbidden to curse dead people.  The same exposition is found
in the Mkhilta attributed to Rabbi Shim`on Bar Yoxai (not to be
confused with the more familiar Mkhilta attributed to Rabbi Yishma`el)
to Exodus 22:27.

There seems to be a notable increase in entropy in this exposition of
the verse, in the sense that, under this exposition, there are many
different initial states that can lead to the same final state.  The
verse could have said, "Do not curse a lion tamer" or "Do not curse a
chartered accountant", and you could still have said: it doesn't mean
only a chartered accountant, it means all living people; just as a
chartered accountant is alive, so, too, you may not curse anyone who
is alive.  But there is still no satisfactory explanation for why a
deaf person is the example given by the verse.  Such observations may
lead you to entertain the notion that Jewish legal exegesis is, at
times, forced and unnatural, the rabbis choosing their conclusions
regardless of the language of the verse, deciding first what
conclusion they want to reach, and then deciding how to derive that
conclusion from the verse.

When you find such thoughts welling up inside of you, I urge you to
ask yourself: forced and unnatural, compared to what?  Compared to the
legal reasoning of the goyim?  Ha!  It is to laugh.  Ha, I say.
Remember Raich, remember Korematsu.  Jewish legal exegesis is not
merely the most intellectually honest legal exegesis in the world.
It is the only intellectually honest legal exegesis in the world.

Whenever I examine one of these apparently forced interpretations with
a modicum of patience and humility, I find that the interpretation
appears forced only because of the passage of time, and the consequent
slow loss of context and of shared cultural literacy.  In fact, the
Sifra and the Mkhilta of Rabbi Shim`on Bar Yoxai assumed that the
reader would understand -- and consequently left unstated, as not
needing to be said -- that Leviticus 19:14 employs a qal vxomer.  They
were explaining why Scripture employs the deaf person as the lower
bound of the range.  If the universal set ranges from 1 to 100, and if
there is a phenomenon that applies to all elements greater than 42,
and if you can legitimately assume that if it applies to a lower
number, it also applies to a higher number, then all you have to do,
to describe the phenomenon, is to state that it applies to 43.  From
43, you can deduce the range, 43 to 100, whereas from 52, you could
only deduce the range, 52 to 100.  Or, in the language of the Sifra --
Why 43?  Because it is the smallest number greater than 42.  The
halakha of Leviticus 19:14 applies to all living people.  For the
purposes of the qal vxomer, a deaf person is the smallest element in
this range, the example from which all others can be inferred.  You
can infer a chartered accountant from a deaf person, but you could not
infer a deaf person from a chartered accountant, because the deaf
person cannot even hear your curse, whereas the chartered accountant

As the example has, I hope, indicated, Jewish legal discourse is
sometimes hard to understand, because of the immense passage of time
that has occurred between now and when the law was first given to us,
but it is not dishonest, and in that regard it is dissimilar from the
legal discourse of every other nation in the world, which is grossly
dishonest.  That is why involvement in secular law is so morally
corrosive, and involvement in Jewish law is not.

		Jay F. ("Yaakov") Shachter
		6424 N Whipple St    Chicago IL  60645-4111
			<jay@...>    http://m5.chicago.il.us


End of Volume 55 Issue 16