February 13, 2004

Behind the Law

The Volokh Conspriacy has some inspiring thoughts on the stories behind the law:


The truth about the law: One of the advantages of a legal education -- at least American legal education, based on the case method -- is that there's a story behind every case, with real people behind it. (My Civil Procedure professor, David Shapiro, said this on the first day of law school -- and qualified it with the observation that in Civ Pro, actually, the cases can be kind of dull.) Having a story is especially true with the federal court rule against "advisory opinions" -- courts prefer to (and in some cases can only) rule on an issue when an actual real-life result rides on the outcome.

Brings to mind the Taz that takes issue with the Terumas HaDeshen for "inventing" cases to offer decisions on. The Taz states that one loses the siyata d'shmaya (heavenly assistance) given to a posek (legal decisor) when the p'sak (decision) is not a real-life case.

Volokh contiunes by quoting a song about the beauty of the legal code, which I think applies even more so to Torah:


It turns out that the Russian singer-songwriter Vladimir Vysotsky (1938-80) -- a very gritty songwriter who wrote a lot about blue-collar life, criminals, and the like, and who of course was an alcoholic and died young -- discovered the same idea, in his song The Penal Code:

We don't need complicated subjects and plots --
We know it all, whatever you give us.
For instance, I think our Penal Code
Is better than any book on earth.

And if I'm restless and can't sleep
Or if I'm dead from a hangover,
I'll open the Code on any page,
And I can't help but read it to the end.

I never gave my comrades advice,
But I know robbery is a great honor with them.
Well, I just read about this:
"No less than three, no more than ten."

Just think about these simple lines, --
Why do we need the novels of all times and lands?
There's everything in them -- barracks as long as terms,
Scandals, fights, cards, and betrayal.

I wish I'd never seen these lines in a hundred years --
Behind each one I see someone's fate!
And I'm happy when the section isn't too bad:
Someone may yet get lucky.

And my heart beats like a wounded bird
When I start reading my own section.
And the blood in my temples bursts and pounds so,
Like when the cops come to get you.

Posted by Greg at February 13, 2004 2:44 PM
Comments

In civil law it is known as the difference between holding and dicta. I belive that the Rivash pre-dates both in discussing the weight given to actual and theoretical decisions.

Posted by: reader at February 16, 2004 10:51 AM