A Brief Primer to the Influences of Religious Law Today

by Prof. Jonathan Arnold, Esq., GCRR – Head of International Religious Law

When one thinks of religious law, one of two typical reactions are triggered. The first is one of scholars studying a somewhat interesting, albeit dated – or outdated – modality of law that has little relevance to today’s world. The second is that religious law was – and is – wholly separate from today’s legal regimes. The reality is that a close analysis of religious law reveals that it is anything but a legal outlier. Examples of the influence of religious law – specifically Jewish Law and Roman Law – abound in U.S. Law.

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Think of both our interrelated presumption of innocence and privilege against self-incrimination, both concepts which had their origins in Deuteronomy. “One witness shall not rise up against a man for any inequity, or for any sin, in any sin that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses shall a matter be established” (Deut. 19:15). Further, the concept of cross-examination appears to have had some origin just a few verses later. “And the judges shall inquire diligently; and behold, if a witness be a false witness, and hath testified falsely against his brother; then shall ye do unto him, as he has purposed to do unto his brother; so shalt thou put away the evil from the midst of thee” (Deut. 19:18-19).

Think now of Roman Law, which treated tradition as practically sacred, transposing custom to the religious plane. One of the best examples of this was the Twelve Tables, out of which arose many maxims of jurisprudence, and no small amount of these maxims found their way into the Common Law systems, such as de quolibet homine presumitur quod sit bonus homo donec probetur in contrarium (roughly translated as, “It is presumed of every man that he is a good man until it is proved to the contrary.”) And this very maxim found its way into American jurisprudence, being referenced by Harvard Professor Thayer (James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law, p. 553, Little, Brown & Co., 1898).

Turn to the Talmud to take a look at how some aspects of religious law set norms which no doubt influenced later, secular, law. The Talmud provides that when a contract for employment is silent as to work hours and the employer’s provision of meals, such matters are to be interpreted according to recognized custom and practice in the area (Bava Metzia 83a). Modernly, this is right in line (and, indeed, may have had some influence upon) the Uniform Commercial Code. California’s variant on this model law provides, in pertinent part, “A course of performance or course of dealing between the parties or usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware is relevant in ascertaining the meaning of the parties’ agreement, may give particular meaning to specific terms of the agreement, and may supplement or qualify the terms of the agreement. A usage of trade applicable in the place in which part of the performance under the agreement is to occur may be so utilized as to that part of the performance” (California Com. Code § 1303(d)).

Prof. Jonathan Arnold, Esq.

I reflect on part of my work as both a professor and practicing attorney, including teaching and working in Entertainment Law (disclosure, I did grow up in the “biz”) and what Bava Metzia 83a mentioned remains fully animated today – there is practically no contract on which I provide counsel where working hours and meal breaks are not controlled by reference to applicable guild and union collective bargaining agreements (e.g., Directors Guild of America, Inc. Basic Agreement of 2017, § 13-215). Concepts embodied in – and sometimes concepts which had their origins in – religious law continue to resonate.