- Attention conservatives, strict constructionists and
all those opposed to judicial "activism" and who want to see
the Constitution restored as the law of the land: the Talmudic Tradition
embodies a wide range of principles that permit judicial deviation from
Constitutional law
-
- "Judicial Discretion in Talmudic Times and the Modern
Era"
- By A. David Pardo (Law offices of Foley Hoag LLP)
-
- http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=
- ContentDisplay&ucmd=UserDisplay&userid=10438
- 7 Cardozo Pub. L. Pol'y & Ethics J. 429-454 (2009)
-
- http://works.bepress.com/a_david_pardo/2/
- The abstract states:
-
- In this Article, I explore judicial discretion under
Halakhic law, Anglo-American law, and Israeli law. In Part I, I compare
the differences in treatment of judicial discretion between the Palestinian
Talmud and the Babylonian (Bavli) Talmud. In Part II, I explore judicial
discretion in the modern era. In Part III, I argue that the Babylonian
Talmudic conception of judicial discretion is forthright about the existence
and need for discretion, thus avoiding the doctrinal problems that inhere
in the Palestinian Talmud. Moreover, I argue that the Bavli should serve
as a model approach for coming to terms with the discretion that inheres
in our Anglo-American judicial system, which is indispensable for the administration
of justice.
-
- The notion of discretion in the exercise of governmental
powers is one that vexes scholars and the public alike. Is the mere existence
of discretion the first stop on the road to judicial tyranny? Or is it
an indispensable element in the pursuit of justice?
-
- Some consider discretion to be "the law of tyrants:
It is always unknown: It is different in different men: It is casual, and
depends upon constitution, temper, passion. In the best it is oftentimes
caprice: In the worst it is every vice, folly, and passion, to which human
nature is liable." This view is codified in an oft-cited provision
of the Massachusetts Constitution.
-
- It is also reflected in an engraving on the side of the
United States Department of Justice building, in Washington, D.C., summarized
by five words: "Where law ends tyranny begins." Yet, in our system
of government, where law ends tyranny need not begin. Where law ends, discretion
begins, and the exercise of discretion may mean either beneficence or tyranny,
either justice or injustice, either reasonableness or arbitrariness . .
. . No government has ever been a government of all laws and not of men
. . . . Every government has always been a government of law and of men.
-
- The study of discretion in the judicial process has generated
countless treatises and jurisprudential theories. These studies, naturally,
analyze this concept from a contemporary perspective that is rooted in
modern Anglo-American law. Judicial discretion, however, is not a new concept
or one that is unique to democratic societies. Indeed, it is an issue that
has divided post-biblical societies in Ancient Israel. Furthermore, the
methods developed by rabbis in the Talmudic era are as relevant now as
they were then, in understanding and accepting judicial discretion in our
democratic society.
-
- (Emphasis supplied)
-
- Hoffman's note: if anyone has a complete copy of Mr.
Pardo's article I would like to have it.
-
-
- http://revisionistreview.blogspot.com/2009/06/talmud-permits-judicial-deviation-from.html
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