Abstract

http://ssrn.com/abstract=1696014
 


 



How We Judge the Judges


Maimon Schwarzschild


University of San Diego School of Law

October 22, 2010

Conversations, No. 8, p. 83, 2010
San Diego Legal Studies Paper No. 10-044

Abstract:     
How does the importance of personal character, the ethical quality of the individual, compare as between a secular judge - say a United States federal judge or a state court judge - and a religious authority such as a leading traditional rabbi? To put the question a little more narrowly, how much does a person’s moral character count, both in theory and practice, in attaining and keeping such a position?

An American judge and a traditional rabbi are not strictly comparable, of course. But if there is a secular authority to which a rabbi is most comparable, especially a rabbi whose rulings are influential among Orthodox Jews, it is probably the judge.

Such a rabbi is invariably expected to be a morally exemplary person, even to be a kind of living ideal, whereas what is typically expected of a secular judge is much more limited. The reason is partly that a rabbi is a religious leader as well as a legal authority, and as in any religion, expected to set a good example. But beyond that, there are differences in the nature and institutions of Jewish and secular law which go far towards explaining why moral character seems to be more important for rabbinic authorities - whether or not they always meet the lofty standards - than for the judiciary of a secular, liberal state.

One important difference is that the scope of law in a secular, liberal society is limited: broadly along lines set out in Mill’s On Liberty. The Torah, by contrast - like Islamic law - governs all, or almost all, aspects of life. Given the breadth of a rabbi’s authority in their lives, it is only reasonable that his followers should take a deep interest in his character.

A second difference is that the power of an American judge is hedged in by an elaborate institutional framework of constraints, whereas there are fewer constraints, at least fewer formal checks and balances, on rabbinic authority.

The religious preoccupation with personal character has implications for any possible new directions in the Orthodox world. The trend in Orthodox Judaism in recent decades has been towards ever greater rigour in religious observance and antipathy to innovation in the interpretation of Jewish law. Personal character is apt to be especially important for any rabbi who would challenge the prevailing trend. To rule “leniently” or innovatively, especially on issues felt to be of defining religious importance, a rabbinic leader would surely need strong Jewish scholarship but also strong personal authority, at least if such rulings are to hope for acceptance in today’s Orthodox world.

Number of Pages in PDF File: 15

Keywords: Judges, Rabbis, Secular Authorities, Religious Authorities, Liberalism, Checks And Balances

JEL Classification: K40

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Date posted: October 23, 2010  

Suggested Citation

Schwarzschild, Maimon, How We Judge the Judges (October 22, 2010). Conversations, No. 8, p. 83, 2010; San Diego Legal Studies Paper No. 10-044. Available at SSRN: http://ssrn.com/abstract=1696014

Contact Information

Maimon Schwarzschild (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2343 (Phone)
619-260-4791 (Fax)
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