Monday, 28 October 2013

Categories of Monetary Cases in Halacha and Common Law

So, in a recent post we discussed the similarity between the distinction between גזילות וחבלות and הודעות והלוות in Halacha and the distinction between Criminal Law and Civil Law in common law. Now let's discuss how they are different.

Criminal vs. Civil

One important difference is the Plaintiff i.e. the party making the claim in court. In Civil Law, the Plaintiff is a private party--an individual, a group, a company. This private party claims that they have been wronged by the Defendant. In Criminal Law, however, the Plaintiff is the state, or it's representative.

So, why are criminal cases viewed as generally more serious than civil cases? The main reason seems to be that it's considered more serious to commit an offense against the State than against an Individual. This idea is easiest to understand in a Democracy, where the rules of the State represent, to some degree, the rules of Society at large. A Civil offense primarily wrongs one's fellow, while a Criminal offense wrongs Society itself.

On could suggest that Friedrich Hayek would disagree with this distinction. In his book Law, Legislation, and Liberty vol. 1 Rules and Order(1973), Hayek distinguishes between Legislation and Law. Legislation is a rule the government made, while Law is a sort of Natural Law that emerges spontaneously in a Society. There's a good deal of overlap between these two categories, but both include rules not contained by the other.  As such, one could imagine a piece of Criminal Legislation which doesn't fall under the category of (Natural) Law, and in that case one might argue that one isn't really wronging Society. For instance, in Eureka, Nevada it is illegal for men who have mustaches to kiss women. Now I doubt that this piece of Legislation is still enforced, but were someone to be tried for it, one could certainly argue that when this rule ceased to be a (Natural) Law, one who transgresses it is not viewed as wronging Society.

I would reject this difficulty from Hayek for two reasons:

  1. There is pretty good correlation between Law and Legislation, so in-general we can view transgressing Legislation as wronging Society
  2. Even in the cases where they don't correlate, as with the Mustache Law, one could make the argument that transgressions of Legislation against a Democratically Elected State undermine said state and therefore wrong Society

גזילות וחבלות vs. הודעות והלוות

So, who is the Plaintiff in these Halachik categories? In the case of both גזילות וחבלות and הודעות והלוות it is an individual claiming damages. So the above distinction, between harming an individual vs. harming society does not seem to apply here. So why are גזילות וחבלות considered more serious than הודעות והלוות? As we suggested previously, because גזילות וחבלות usually begin with violence and/or illicit intent, whereas הודעות והלוות are non-violent and are often cases of misunderstanding of the law by one or both sides.

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