A Jurisprudential Puzzle as Old as the Talmud

Abstract

Judges face an unenviable predicament: on the one hand, they are charged with applying the law as it is, rather than as they’d like it to be. On the other hand, legal sources can often be read so as to support opposite rulings. I explore how the Talmudic version of the problem presents a uniquely paralyzing conundrum for legal decisors. The problem arises in the interaction of various Talmudic principles. One is the principle of pluralism: The same act in the same circumstances may rightly be ruled permitted or forbidden, the same food kosher or unkosher. The second principle, I’ll call faithfulness: Rabbinic decisors, in ruling on a case, must try to find the correct answer. We can shed light on the contemporary jurisprudential problem by comparing it to the ancient and enduring version of it laid bare in the Talmud.