Judicial Discretion in Talmudic Times and the Modern EraCardozo Public Law, Policy & Ethics Journal (2009)
AbstractThis article compares judicial discretion in the modern democratic era and Talmudic times in Ancient Israel and Babylon. The author's key insight is that recognition of the use of discretion in judicial decision-making is unavoidable and, indeed, necessary for providing society with a responsible and just set of laws. The article begins by exploring the reasons why a particular society might wish to constrain or obscure the exercise of judicial discretion. First, the author examines several notable cases from the Mishnah and compares their diverging interpretations in the Babylonian and Palestinian Talmuds. Through these cases, the author notes the ways in which Palestinian Rabbis were more ardent in denying the place of judicial discretion in their decision-making, relative to their Babylonian counterparts. The article then discusses such themes as unification of the law, intolerance of legal pluralism (which arose with neighboring and often-competing civilizations), and emergency powers. Next, the author explores the different ways judicial discretion was manifested in Talmudic times – via power-conferring rules and equity considerations – before turning to the modern era. Discussing the modern era, the author notes that recognition and acceptance of judicial discretion is a controversy that persists to this day. Many of the same themes discussed in the first half of the article are used to make the observation that legal pluralism exists in today’s legal world as well; though there are no competing civilizations threatening to displace a society’s legal system, the conflict is at a more abstract level, where multiple legal theories and interpretive methods compete for judges’ attention. The article ends by describing several lessons that can be imported from the Talmudic cases into our own era to effectuate a more just and open legal system. The author concludes by drawing parallel descriptions between these lessons and several observations made by contemporary and prominent judges.
Publication DateFall 2009
Citation InformationA. David Pardo, Judicial Discretion in Talmudic Times and the Modern Era, 7 Cardozo Pub. L. Pol'y & Ethics J. 429 (2009).