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.

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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.

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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.