You’ve written much on the intersection between halacha and American law. What would you say are some of the major general differences between these two systems of law?
There’s nothing general. There are principles of common law and there are principles of halacha. For example, the principles that govern lost property in halacha are quite different from those of common law. Common law – as reflected in American statutory law – requires me to take any object I find worth more than 20 dollars to the nearest police station. The police are supposed to wait for the rightful owner to press a claim and if nobody comes after six months, they can give it back to me. In halacha, if the circumstances are such that I presume yi’ush [i.e., the owner abandoned hope of recovering the object], I don’t have to do anything to find the rightful owner.
On the other hand, American law says that if I see a valuable diamond on the street, I don’t have to pick it up and return it even if it’s in a bag with the owner’s name on it. Halacha, though, says I have no choice but to take custody and return it to its rightful owner.
So comparisons with regard to particular points are sometimes very significant. But global comparisons are either nonsensical or trivial. It’s like comparing apples and oranges. Sure, there are common things between apples and oranges. They’re both healthy. You need law for society to exist. But different types of law are reflected in different societies.
About four years ago, my father showed me an interview of Prof. Nahum Rakover by R. Yitzchok Frankfurter in Ami Magazine, in which, if I recall correctly, Prof. Rakover explained that there is indeed a general difference between halachah and Western law, in that the former integrates considerations such as לפנים משורת הדין and מדת סדום together with standard, legalistic rules into a unified framework, whereas the latter considers such considerations as entirely extralegal. I don’t currently have access to the entirety of the interview, but I did copy into my notes the following anecdote related by Rakover:
There was a case in Netanya where someone bought a very large refrigerator. The problem was that is was too big to fit into the entrance and stairwell of the building, so the only way to get it into the man’s apartment was to bring it inside the building through his neighbor’s porch. ‘Fine’, said the neighbor, ‘but you’re going to have to pay me.’ They went to a beis din, which ruled that you’re not allowed to charge for a favor like that. I related the case to an American attorney and he laughed. ‘Why in the world would you coerce the neighbor to agree?’ he wanted to know. ‘It’s his prerogative to refuse. If I were the neighbor with the porch I’d say, ‘My apartment belongs solely to me. You absolutely cannot invade my privacy.’ That is the view of the majority of legal systems.1
- Ami Magazine, Issue 218 – May 20, 2015 / 2 Sivan 5775, pp. 102-03.