[Avodah] Specific to general vs general to specific (was:

[bdcohen at optonline.net]

Rn Chana wrote:
"So it seems that there are (at least) two alternate ways of formulating
a legal system, and the Torah (really surprisingly, would you not have
expected it to be codelike?), the Mishna (at least to the extent that it
is not bringing halacha Moshe miSinai), and Chazal often seem to me to
prefer something closer to the English common law system than the Code
system, which I then described as being a tendency to work upwards from
a specific case to general principle, rather from general principle
downwards to a specific case. "
 
AISI, the common law system uses case law to derive general principles which are then applied to further cases. However, there is still a primary organic law, such as the Constitution in the USA or the various documents (Magna Carta etc.) making up the British "constitution", to which all case law principles must conform.
 
The halachic system bears similarity to the common law, but differences are critical. The "Torah Shb'al Peh" is closer to unwritten principles which are nevertheless understood as binding, and are not derived from a particular case law. The Mishneh does not seem to be a "case book" from which we derive principle of halacha. On the contrary, mishnaic cases assume one's familiarity with the basic  principles applicable to the specific area of halacha. The cases reported in the mishna are those designed to test and teach what are the outer limits of the applicability of those principles, but not the derivation of the principles themselves. (For the lawyers in the group, Hadley v. Baksdale established the principle of mitigation of damages in English common law of contracts. One almost never finds an equivalent case in the Mishneh. rather, a mishnah usually expects one to know the principle (part of TSBP) and would be exploring how far we can extend the principle (e.g. in what cases would be mitigation of damages not apply).
 
David I. Cohen
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