[Avodah] Halacha - Stability and Revision Pt. 1 Parallels from American Law

[Richard Wolpoe]

Generally I see 3 schools of Judicial thought:

   1. Fundamentalism
   2. Traditionalism
   3. Activism

Fundamentalism:
The original intention of the earliest canonical sources RULES.  This
actually can provide a great deal of activism in the sense that
Fundamentalism can lead to a form of REVISIONISM.

Illustration:
In the USA this might read like this:  Since the First Amendment NEVER put
up a wall between Church and State, and only addressed Congress' ability to
establish religion, therefore any law that requires a GREATER separation is
either null and void, or at least VOIDABLE.

Goal:
To stick to canonical documents.  To highly restrict revisionism of original
intention, in favor of revising laws that fail to conform to
fundamentalistic reads of the tomes.

Traditionalism:
This is based upon the principles of Common Law.  The rulings of course are
all factored in to make the law. The higher the court the more influential
the precedent. Texts and tomes are secondary to how the courts rule in
practice.  New rulings can introduce new law, but ONLY if other courts
ratify this as precedent. Otherwise, Stare Decisis [let the decision stand]
is the underlying assumption.


Illustration:
In the USA this might read like this:  Since Roe vs. Wade is SETTLED LAW,
and has even been used as a basis to create other law, the decision stands
DESPITE the fact it might have been flawed or not in consonance with
fundamental texts.

Goal:
To create a stable -albeit evolving society.  Businesses need stability upon
which to project their decisions. Property needs to be protected in order to
encourage improvements. Protect values that  created the society and to
perpeutate these values across generational boudnaries

Activism:
Since the principles of Liberty and Justice for all are META-LAW, all texts
and Traditions may be disregarded in favor of a liberal agenda of maximizing
liberty

Illustration:
In the USA this might read like this: Since traditional marriage has been
restricted for generations to heterosexual couples, we may wish to
liberalize these laws and let Gays and polygamists have the SAME rights as
traditional hetero-marriages.  This is in order to spread the most rights to
the most people. Fundamental readings of text, as well as history and
tradition - take a back seat.  They may even have a voice, but not a veto.

Goal:
To pursue a liberal or a libertarian or a libertine] agenda.  To promote
progressivism.  Maximise rights for the people.

BEH I will follow up with Halachic parallels in the next post.


Kol Tuv / Best Regards,
RabbiRichWolpoe at Gmail.com
Please Visit:
http://nishmablog.blogspot.com/
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