‘Jewish law is more paternalistic than U.S. law’

‘Jewish law is more paternalistic than U.S. law’

Questions for Rabbi Michael J. Broyde

Staff Writer, New Jersey Jewish News

Law professor and talmudic scholar Rabbi Michael J. Broyde says Jewish law “is more inclined to tell people right from wrong.”
Law professor and talmudic scholar Rabbi Michael J. Broyde says Jewish law “is more inclined to tell people right from wrong.”

Rabbi Michael J. Broyde, a prominent legal scholar in both American and Jewish law, will participate in the fifth annual Jewish Law Symposium sponsored by Chabad of Southeast Morris County on Wednesday, Sept. 14, in Whippany.

The discussion, moderated by Randy Cohen, the former “Ethicist” columnist for The New York Times Magazine, will focus on “Ethics Lessons from Shakespeare’s The Merchant of Venice: Personal Prejudice, Excessive Profits, and Right to Die.”

Broyde, professor of law at Emory University School of Law and a senior fellow at the Center for the Study of Law and Religion at Emory.

NJJN spoke with Broyde in advance of the conference about some of the differences between American law and Halacha.

NJJN: Is there a difference in the way the American legal system approaches ethics versus the way Halacha approaches ethics?

Broyde: Jewish law fully integrates ethics and law in a single field called “the path,” hence “Halacha.” It does not draw the sharp distinction that is so common between law and ethics in American society.

NJJN: There are three areas the moderator hopes to cover in this symposium: the right to die, excessive profits, and prejudice, each of which could be a book on its own. Could you in broad strokes identify the most striking differences in the ways Halacha and American law look at these areas?

Broyde: With regard to the right to die, American law focuses at its core on the patient’s autonomy and the right to do as he or she as an individual thinks is correct. Jewish law does not think that way. In Jewish law, our bodies are not our property, and we have no right to suicide. We bear the obligation — not to stay alive as long as we can — but we have no privilege to end our lives. Thus, every situation at the end of life involves a balance to be struck about what to do, and is not just about what the patient wants.

Excessive profiteering is viewed in Jewish tradition as a violation of consumer protection. Unlike American law, which is basically “caveat emptor” — “let the buyer beware” — Jewish law requires greater disclosure on the part of the seller. For example, a seller may not sell goods above market price. The distinction is: Who bears the burden? In American law, the seller does not need to note any defects or the fact that the price is too high; Jewish law requires both. So if I have a computer worth $300 that you can buy on Amazon for $300, I can sell it for $600 under Jewish or American law. But Jewish law requires me to tell you that you can buy it cheaper elsewhere. Under American law I am not required to make this disclosure.

With regard to prejudice, Jewish and American laws equally condemn it; under both systems, everyone is to be judged on their own merits and not as a stand-in for another organization.

NJJN: What do these distinctions say about the pursuit of justice in American and Jewish law, respectively?

Broyde: Jewish law is more paternalistic than the American legal system. It does not give people the same freedoms they have in a capitalistic society and in the personal sense, it is more inclined to tell people right from wrong.

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