Document Type

Article

Publication Title

Utah Law Review

Publication Date

2003

Abstract

While the particular languages of our differing religious traditions do not seem to me to be good bases for a public criminal law, they are useful for considering familiar issues in an unfamiliar light. I therefore offer a reading of a set of unfamiliar texts from the Talmud, one of the foundational texts of the Jewish tradition, to make two basic points about criminal law with some applicability to the restorative justice debate. At the same time, their language and structure should illustrate how disparate our traditions are.

First, criminal law should have a limited, nontranscendental goal. Torah law, like some of the more religious manifestations of restorative justice, claims divine authority and aims at ultimate justice - but the Jewish texts demonstrate that consistent working out of that view leads to the conclusion that ideal criminal law is impossible for humans to administer. In our democratic state, our goals should be less lofty; but the Jewish law experience suggests, I argue, that we nonetheless ought to be wary of the hubris inherent in any criminal law.

Second, the Jewish law debate provides an alternative justification for the restorative justice emphasis on mediation and mutual agreement. Criminal law, in the end, must be defended on empirical grounds: primarily that it works to reduce crime and secondarily that it mitigates the pain caused by crime it fails to prevent. The historical experience of Jewish law's attempts to substitute mediation for coercion offer qualified support for the community-based mediation techniques of some versions of restorative justice. Mediation and compromise can be based in the spirit of humility that is appropriate when humans try to judge things that, in an ideal world, would not be judged by those of only human abilities.

In short, this Article attempts to demonstrate the futility of particularist, religious-law based criminal law, using itself the language and traditions of a particular religious law system. If it succeeds, it will simultaneously illustrate the universality of the underlying concerns and the particularity of the language in which we debate them.

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