Traditional Halakha versus Dworkin

Dworkin posited two elements involved in a legal interpretation.  The first, fundamental or “threshold requirement” is that an interpretation “fit” the denotation of the legal data, and “even when an interpretation survives the threshold requirement, any infelicities of fit will count against it.”  The second ideal criterion is that the interpreter should provide “the best constructive interpretation,” one that “shows the community’s structure of institutions and decisions—its public standards as a whole—in a better light from the standpoint of political morality.”  (Dworkin 1986, 255-256)  My argument is that as regards traditional Halakha the assumption of constructively interpreting the precedents is simplistic while the assumption that a constructed interpretation has to fit the denotative sense of the data is excessive. 

In pre-modern, non-legalistic, Halakhic methodology all the norms of a society committed to goodness are always going to have (1) a justifiable perspective and principle, (2) a contextual explanation for their being exceptional violations of a contradictory principle, and (3) so their original intent is open to be read charitably as in line (from some perspective) with the all of the community’s principles.  That being the case, there is no need to creatively reread norms with charity and no concern with maintaining fit.  Rather, the socially recognized sages, the contemporaneous definers of law in a wisdom tradition - in a system that does not include distinct agencies of legislation to overturn earlier law and of legal interpretation – (attempt to) read the original value balance of a specific norm and then weigh how best to apply the norm under contemporary conditions.

This traditional method of Halakha has helped protect Judaism from the flaw in the Dworkian and any other classic judicial model.  If a society follows a classic judicial model, even a creative one similar to Dworkin’s, it finds its conservatives and liberals painting the sources to best reflect their ideal principles and attempting to silence the other through the manipulation of the legitimating legal langue.  If a society chooses, on the other hand, to follow the traditional Halakhic philosophic model then its liberals and conservatives do not discount the others’ values since they share those values.  Rather they jointly enumerate all the conflicting underlying values that both sides both share and incorporate even as they simultaneously debate how best to incorporate, or balance, the conflicting values.