Etz Chaim

David Bernstein compares the Federalist Society to Conservative Judaism (which, as some of his commenters now have been made aware, is quite different from conservative Judaism. Capitalization matters, folks!).

The Federalist Society: "It is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

Conservative Judaism (as expressed by Rabbi Kenneth Cohen): "[T]he role of the rabbi is not to decide what the law should be, but rather what the law is."

But wait! Follow up on that Cohen quote:

Nevertheless, there are always new situations which were not clearly anticipated in the classical literature. For instance, rabbis have always insisted that smoking is prohibited on Shabbat. But recent health data might compel a rabbi to rule that smoking is prohibited altogether. Although this is an innovation, it is in conformity with the Torah injunction to preserve life. Similarly, our understanding of human sexuality has undergone remarkable changes in recent years. This information needs to be considered sensitively when applying Jewish law.

Halacha has never been determined in an ivory tower, removed from the "real world." It has always reflected the environment in which it thrived. The Torah is an "etz chaim - a tree of life" with solid and ancient roots but also with branches and leaves which continue to grow.

A tree of life? Sounds like a living constitution to me!

People often forget how legalistic Judaism is (indeed, that was one of Jesus' early critiques, was it not?). It is definitely a law based religion. So all of those later texts that are so important to us--the Talmud, the Mishnah, Responsa, etc.--all are essentially legal interpretations, akin to court rulings. That's why examining the Jewish tradition can yield such fascinating insights on legal thought. We've got thousands of years of experience dealing with a fluid and flowering tradition.