Few readers of this Blog will have paid much attention to the Israeli Supreme Court’s recent decision disallowing that country’s chief (centralized) rabbinate’s decision to permit local variation in rabbinic councils’ certification of kosher foods, as some of these local councils preferred to be more textualist (and strict) in their understanding of how to abide by the biblical requirement that the holy land be fallow every seventh year (the sabbatical, or “shmita” year). Impermissibly harvested crops would then bring about a refusal to certify foods as kosher. That decision itself seems mysterious to those of us who are accustomed not only to more of a church-state separation, but also to the idea that certification standards should normally proliferate because consumers and producers can then decide on their own courses of action.
An interesting aspect of this far-away dispute is that it demonstrates the unreliability of precedent when there is a confounding text in the background. The law there begins with the biblical text calling for the earth to have a sabbatical year. In that year farming is forbidden and perennial crops are ownerless, with an explicit redistributive nod to poor people who will benefit from the freely available food. But how will the agricultural sector survive this extreme form of crop rotation? One possibility would have been for the lawmakers to interpret the text as requiring each parcel of land to enjoy some sabbatical year, but to permit rotation across the country. Instead, the entire land, within later-defined boundaries, is said to observe the same sabbatical cycle. Modern alternatives or loopholes permit hydroponics, growing crops in trays on tables (not on the “Land”), or transacting with non-Jews. But the most dramatic solution was to permit a form-over-function sale of the land, with the seller working the land as an employee of sorts, with the right or even obligation to buy the land back at the end of the year. This is not a sale-and-leaseback any legal system would accept for tax or criminal law purposes, but it became the dominant means of coping with the text.
One useful and comparativist way to think about this is that a structural argument about the text was allowed to trump a piece of text itself. The structural argument is that the text anticipates an agricultural sector and, for the state to thrive, some solution to the sabbatical prohibition was required. For a long time, only a tiny percentage of lawmakers and consumers found this permissive solution offensive. But affluence makes stricter religiosity possible. Consumers can import produce, and expect contributions or subsidies to prop up farmers who work the land but six of seven years. Sure enough, there is now a substantial movement to reverse the (religious law) precedent and to insist that the sale-and-leaseback accomplishes nothing. Restaurants and other intermediaries are caught in the middle. Law has become a cause of instability. It is possible that the solution was misguided. A more stable equilibrium might have come about through a decision to declare produce farmed in the sabbatical year as ownerless for a brief period of time and then “reclaimed” before sale to the public. Or perhaps the solution should have been to permit export of the otherwise forbidden produce, so that the cost of the text’s prohibition would be limited to the transactions costs of importing and exporting.
In our own legal system we are also accustomed to solutions of uncertain stability that are at odds with, or unanticipated by, our most important text. Roe v Wade’s trimester is one good example, and its stability became an open question after years of apparent precedential force. Dormant Commerce Clause cases may offer another. Various decisions with respect to affirmative action and Equal Opportunity provide other examples. In all these cases, my sense is that once there is serious questioning and “exposure” of the arbitrariness of the first anti-textual solution, we should expect a new (clever or arbitrary) solution, rather than stability based on the text itself or based on broad agreement to abide by the precedent that came to be accepted but then somehow became vulnerable to textual and other objections. Israel’s agricultural sector is too important to be cut down by fierce, minority religious opposition, but the lawmakers will probably need to come up with something new to take the place of, or improve upon, the sale-and-leaseback arrangement. Similarly, the prediction here (to be developed, I hope, in my future work) is that we should expect new means of compromise in the abortion and affirmative action debates. And then these solutions will also have significant but limited lives, for that is the nature of democracy, intense preferences, and the need to pay homage to a founding text.