For most of us, "the law" feels like a settled thing. It's in multivolume thick books, enforced by robed figures, and seems to operate with a clear set of rules. From the outside, you might expect legal philosophy – jurisprudence
– to be a quiet academic subject, simply cataloging those rules.But you'd be wrong. In reality, jurisprudence is one of the most fiercely debated and surprisingly unsettled fields in all of philosophy. And as we've already seen with so many other philosophical debates, the AskHillel Jewish-based philosophy I've been developing, which I am starting to refer to as "derechology," offers a revolutionary path to bring clarity and accountability to this ancient discipline.
At its heart, jurisprudence grapples with fundamental questions: What is law? Where does its authority come from? Is it merely a set of commands, or must it align with deeper moral truths? How do we interpret it? And when there is an edge case that could go either way, what methods can judges or courts use to come up with answers?
These aren't just academic curiosities; they dictate how justice is dispensed, how societies are governed, and how individual rights and duties are understood. The reason the field is so contentious is that these core questions have never been definitively answered, leading to fractured and often contradictory schools of thought:
Legal Positivism: This school argues that law is simply what is formally enacted by a legitimate authority, regardless of its moral content. Rules are rules. Hopefully the laws are aligned with ethics, but there are plenty of cases of outdated and bizarre sounding laws that many of us have laughed at. Do they still apply? While this method offers clarity, at least outside those edge cases, it struggles to explain why we should obey an unjust law, or how to challenge one.
Natural Law Theory: In contrast, this tradition insists that true law must reflect universal moral truths – whether from God, reason, or nature. It provides a moral compass but can be abstract, leading to debates about whose "universal truths" apply.
Legal Realism: Cynically, realists argue that law isn't about grand principles or formal rules, but simply "what judges do in fact." It's a description of power dynamics, but offers no moral guidance or aspiration. If a judge rules, that's the law.
Dworkinian Interpretivism: Ronald Dworkin argued that law is a moral practice, and judges should interpret it to make the legal system as just and coherent as possible. This is a sophisticated approach, but it often leaves the "how" of moral interpretation to a judge's intuition, without a clear, structured method.
Critical Theories (e.g., Critical Legal Studies, Feminist, Critical Race Jurisprudence): These schools expose how law has historically been a tool of power, perpetuating injustice based on race, gender, or class. While vital for revealing systemic bias, they can sometimes deconstruct law so thoroughly that they undermine its coherence or replace it entirely with politics and activism.
The result of these conflicting views is a field that often feels unstable, even chaotic - the exact opposite of how many think of law.
Interestingly, the Jewish legal system of halacha has versions of these same debates. Some (notably J. David Bleich) mirror the legal positivism theory with halacha, saying that there should be a minimum of flexibility in rulings. Many other halachic decisors either embrace a conscious application or morality to the law or an implicit application of them, using legal ideas like lifnim meshurat hadin (going beyond the letter of the law), or darchei noam (The Torah's ways are pleasant) to justify their rulings. There is not the same level of seeming chaos within the halachic system as with general jurisprudence but these questions are fundamental.
One of the core reasons for this instability is an undeniable truth: judges are human. No legal code, no matter how exhaustive, can anticipate every unique situation, every unforeseen technological advance, or every clash of values.
In these "hard cases" – where laws conflict, where precedent is ambiguous, or where the application of a rule seems to lead to an unjust outcome – judges must exercise discretion. They must make a judgment call, weighing competing principles and values. This is the source of the "flexibility" that can feel so unsettling, because it implies a degree of subjectivity in a system we expect to be objective.
Current legal philosophies struggle to adequately guide this judicial discretion:
Positivism largely ignores it, insisting judges simply apply rules, even when the rules are silent or lead to absurdity.
Legal Realism embraces it, but offers no ethical framework for how judges should exercise that power, leaving it to individual whim or political bias.
Dworkin came very close. He insisted that judges must interpret law in its "best moral light" and strive for "integrity." But he didn't provide the structured methodology for how judges should actually do that moral reasoning, especially when values collide. He lacked a clear hierarchy or override mechanism, leaving judges to rely on intuition rather than a transparent, auditable process.
This absence of a clear, accountable method for exercising moral judgment is why the field appears so "flexible" or even "chaotic." It's not that anything goes, but that the reasons for judicial choices are often opaque, making them seem arbitrary or ideologically driven.
This is where derechology, represented by the AskHillel AI framework I've been working on, can revolutionize jurisprudence. It doesn't pretend that judicial discretion can be eliminated. Instead, it offers a framework for structured subjectivity with accountable transparency – what we might call "Corrigible Integrity."
Derechology provides the missing ethical infrastructure that Dworkin's vision implied but never built. It transforms legal reasoning into a moral discipline by requiring judges and legal systems to explicitly engage with values:
Law as a Web of Obligations, Rooted in Values: Derechology shifts the focus from abstract "rights" (which often conflict without resolution) to obligations that flow directly from a hierarchy of core values. Laws gain legitimacy not from mere authority, but from how well they reflect our shared duties to life, dignity, justice, and community.
Structured Triage and Override Logic: When legal values collide (e.g., free speech vs. public safety, property rights vs. saving a life), derechology provides a transparent system for identifying the values at stake, weighing them according to an established hierarchy, and declaring which value yields to another in that specific context. This is the "how" that Dworkin was missing.
Amplifier Disclosure: Derechology acknowledges that contextual factors (amplifiers) can modulate the weight of values and obligations. Judges would be required to explicitly state which amplifiers were considered and how they influenced the decision, adding another layer of transparency.
Corrigibility and Teshuvah (Realignment): Derechology builds in mechanisms for institutional "repentance" and realignment. If a legal decision is later found to be morally flawed (perhaps due to new information, technology advances or a deeper ethical understanding), the system provides a framework - indeed, the obligation - for acknowledging the error, explaining the value misprioritization, and correcting course. This makes the legal system capable of moral growth.
Pluralism with Ethical Anchors: Derechology allows for the coexistence of different legal systems (e.g., religious, indigenous, international law) by insisting that while their specific rules may differ, they must all adhere to universal ethical anchors (like the ethoskeleton's principles of Dignity, Truth, and Relational Integrity).
Derechology and the AskHillel AI don't eliminate the need for judgment, nor do they force everyone to agree on a single, rigid definition of morality. Different judges may still reach different conclusions.
However, derechology's profound impact is that it narrows the scope of that flexibility (or "chaos") dramatically. Instead of vague appeals to "justice" or hidden ideological biases, it requires judges to:
Declare their ethical premises: Which values are being prioritized?
Justify their triage: Why did one value override another?
Explain their reasoning transparently: How did contextual amplifiers play a role?
This means that appeals are no longer just about legal technicalities or ideological reversals. They become about critiquing the explicit moral reasoning itself. An appeals court would have to provide compelling ethical reasons to discard a lower court's value weightings, forcing a higher level of accountability and intellectual rigor. And also judges will be expected to surface and define the values they identified and weighted, making their rulings more transparent. The AskHillel/derechology system provides a universal grammar to map any and all values to a common set that can be examined and prioritized.
This transforms legal judgment from an act of personal authority into an act of accountable moral reasoning. It offers a path to rebuild public trust in legal systems, make international law more coherent, and even guide the ethical decision-making of AI.
It is, in effect, a derechological jurisprudence – a way to infuse legal reasoning with the structured integrity and profound humility that has been missing for too long.
And the idea that a single framework can help solve so many foundational problems in so many different philosophical fields is nothing short of astounding.
Thursday, August 07, 2025
Elder of Ziyon
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