"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Wednesday, February 01, 2006

Brisk Law - #1

A friend asked me recently about the famed 'Brisk' methodology of studying law which was developed by Rabbi Chaim Soloveitchik (1863-1925) of Brest-Litovsk, Lithuania. She had heard that it applied only to studying Talmud. I responded that it has no textual basis, but it is an independent intellectual structure designed to parse legal systems into component parts, and that it could be used as a method of analyzing any kind of law. Some laws may not reflect the wisdom of that system, which was presumably arrived at inductively from study of Jewish law.

To try to provide some insight, I will try to lay out a series of examples. This will be the first installment.


A man goes through a red light and the policeman pulls him over, giving two tickets, one for driving through a red light and one for reckless driving.

Say his attorney argues that this is double jeopardy, two punishments for the same crime.

Earlier Jewish legal thinkers (16th thru 18th Century) would have only detected the distinction between actions affecting oneself and actions affecting others, because they assumed that laws are distinguished by their impact rather than by their mechanics.

If they would accept the two laws as separate, it might be because the red light law is personal civic responsibility and the reckless driving law is defined by the element of endangering other citizens.

A Brisk analysis would tighten that up, not focusing on the 'purpose' of the law but on the mechanics of the law.

It might define the red light law as the prohibition of a quantifiable act, namely operating the vehicle through the light. The reckless driving law prohibits a qualitative driving behavior, driving without reckoning. This would be distinction enough.


Now say the attorney brings proof that the light was broken and the driver, upon realizing that it would not change, drove on through.

The old thinking might say that this satisfies the civic responsibility element of the red light, so he's off the hook on that charge. The red light cannot be considered to bind him if it is not functional.

The Brisk system would still determine that the prohibited physical action occurred. Went through a red light: guilty.

On the other hand, the old approach might have still considered him guilty of the endangerment element, since cars going the other direction have a green light and crossing in front of them, broken light or not, poses a danger. Thus, guilty on the second charge.

The Brisk system, which categorizes only by title of offense and not intent of offense, might render him not guilty of 'reckless' driving since there was reckoning and analysis before proceeding. (Or it might still see bad reckoning, i.e. taking a chance on going through an unchanging red, as a form of recklessness. But the issue would focus on 'reckless or not reckless' rather than 'endangering others or not endangering others'.)

This is a loose sketch. More to come, if I can find the time.


connie deady said...

Those elements are, of course, in common law. The difference is strict liability crimes and crimes that have a mens rea or a guilty mind. Driving through the red light would be strict liability (drunk driving laws - are you greater than .08?, truck weight laws are strict liability laws).

Most codified crimes have the mens rea element, or some intent required. If you enter a dwelling that belongs to someone else say in the midde of the night, you could be guilty of a burglary, but if you went in, not with intent to commit a crime, but because you accidentally went to the wrong house (ariving from out of town to visit a relative having never been to his house).

None of this is, however, as confusing as the doctrine of merger, which is part of what you aluded to in the double jeopardy question. Try reading these utterly convoluted and confusing arguments. Basically, they look at whether the law exists to protect the same interest of society.

James Elliott said...

Say his attorney argues that this is double jeopardy, two punishments for the same crime.

Isn't it, rather, two crimes arising from one act?

connie deady said...

James. That is the legal question? Is it one act or two? That's my point about the analysis regarding sentencing laws. It's a legal mess.

An example of one I am briefing right now. If a 24 year old man indecently touches a minor in two separate places, are those two crimes, or two acts as part of a single crime?

The law doesn't want to give a discount on crime by ignoring other crimes that are encompassed as part of a larger crime, but sometimes its hard to define which it is.