Must the Law Be Consistent?

If I missed your point, Jeff, we are even.

You�ve missed mine. [Aside to anyone wondering: We get away with this sparring because in real life, we are good friends, and do this in order to stimulate discussion. Do not try this at home!]

My point is about Law, and whether it has to be consistent with itself.

You pointed out an incongruity. California laws protect teens against baking too long at tanning salons; others disallow interference with the abortion of a 12 year old. I read you as attacking the former, rather than the latter, since you pointed specifically to California. I assumed that you had long given up, as I have, on making progress with the newly discovered civil rights in the so-called penumbra of the Constitution, including abortion and privacy. I thought you were arguing that if we are going to be so mindful of the civil rights of 12 year olds to give them leave to do whatever they want with their bodies, then we cannot prevent them from patronizing tanning salons without parental consent.

I see the abortion thing as a hopeless quagmire of competing emotions. We have to put it aside, and move beyond there. In general, I argued, the State indeed has a compelling interest to safeguard its underage citizens from the excesses of poor parenting. Pointing to Jeff Jacoby�s piece was not disingenuous, or designed for its drama. I fully meant that parents can do such an awful job raising or not raising their kids, that society should intervene.

If you are honest (which of course you are) you will concede that the traditional Beis Din/ Jewish court of a few hundred years ago arrogated to itself powers far broader than we are talking about here. If parents were abusive, it would use its power to place the children elsewhere. My understanding is that Israeli courts today are far more likely than their American counterparts to do the same today.

I fully agree � for purely pragmatic reasons � that I would not want government bean-counters here in the US to make life and death decisions, and take kids away from their parents. Choosing between a street-savvy drug user and a brain-dead government bureaucrat is a tough choice. My point was theoretical, and aimed at your seeming dismissal of the California statute. In theory, I believe that society and the law should and must compensate when parents don�t do their job. They should do it regarding small things, such as kids trying to access tanning salons when not being able to deal with the risks. And to be consistent with this legal thinking, they have every right to apply it to major things, like the Jeff Jacoby case of deciding between the claims of loving adoptive parents and drug-abusing chromosome donors who decide late in their kids life that they want to assert some sort of parental claim.

Perhaps I am wrong. Does the law need to be consistent? Is there anything wrong with the assumptions and thinking of one part of the law conflicting with that of a different area? Is there anything wrong with admitting that a particular decision works well in one area, and a different one � embracing variant thinking � works well in a similar, but related area. Perhaps consistency is not something the law should aim at. Perhaps law doesn�t have to make sense, as long as it does the job!

The American legal world seems riddled with inconsistencies, even from case to case within the same arena of law. There are some legal thinkers who are not happy with this (my old friend Alex Kozinski on the Ninth Circuit comes to mind) and insist upon consistency. They are not in the majority.

My legal background comes first and foremost from the pages of the Talmud. Now here is a medium that has fine-tuned the art of consistency! Routinely, the Talmud will analyze tiny subtleties in one neck of the legal woods because of the way they could impact a legal decision in another corner of the legal universe. Everything is assumed to be interrelated, and nothing is supposed to grate on anything else. Modes of legal analysis in different parts of the law shuttle back and forth between them. To employ a very badly mixed metaphor, consistency is the Holy Grail of Jewish Law. While yeshiva-trained students do famously well in law schools, many do report having trouble making the transition to a system where the pieces don�t always interlock, and it therefore doesn�t �make sense.�

Interestingly, Jeff, we come back to your first comments about abortion. It is the abortion issue that has moved the consistency issue front and center. Current law contains a glaring inconsistency regarding abortion, one I make a point of sharing with my law school students. In many jurisdictions, twin sisters could become pregnant on the same day. Six months later, one sister is mugged and killed. Her assailant is charged with murder twice � once for the mother, and once for the fetus, which is regarded as developed enough to warrant a Murder One charge.

The same day as the attack, her twin sister walks into an abortion center, and is allowed to terminate her fetus. No problems, no hassles. Her fetus is regarded as simply a part of her body, and she can choose to keep the hands of the law off her body.

The two positions are inconsistent and incompatible. This disturbs many people of late. Others argue quite vocally: the law need not be consistent. One position protects the fetus against muggers; the other protects the mother. No problem.

Perhaps its all the years I�ve spent happily getting headaches trying to harmonize seeming inconsistencies in Jewish Law. To me, it�s a problem.