Intellectual Property Law and Jewish Law: A Comparative Perspective on Absolutism (Book Review)
Yale Journal of Law & Humanites, Vol. 22, 2010
26 Pages Posted: 13 Oct 2009 Last revised: 24 May 2012
Date Written: October 12, 2009
One's theory of law matters. The approach one takes to how the law develops and should be applied influences both the permissible content of legislation and its interpretation by the judiciary. In NO LAW, Professors David Lange and Jefferson Powell make the case for interpreting the First Amendment's language in absolute terms. They lament the reality that the First Amendment law in the United States has been far more influenced by a balancing oriented ideology since the early twentieth century. This Review not only presents and critiques their thesis, but also illustrates that the premise of NO LAW has a broader force and application by furnishing a comparative analysis of Jewish law jurisprudence. It reveals that Jewish law scholars writing from an Orthodox perspective embrace a theory of law that feels very much like the one proposed by the authors of NO LAW. In contrast, the balancing approach to which they object has found a place in the self-denominated historical approach to Jewish law represented by the Conservative Movement of Judaism. The adoption of one, or the other, of these theories markedly influences how Jewish law is interpreted by rabbinic authorities and Jewish law scholars. NO LAW amply illustrates the same point regarding the importance of a given theory of law in the context of First Amendment and intellectual property law.
Keywords: First Amendment, copyright law, intellectual property, Jewish law, halakhah, Orthodox, Conservative Movement
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