Before Virtue: Halakhah, Dharmasastra, and What Law Can Create

Among the many contributions made by Marc Galanter to legal scholarship are a few short works on Jewish identity and on Jews in American legal professions. More than his limited published work on aspects of law and Judaism, however, it is Galanter’s regular reference to Jewish law in my conversations with him that has led me to explore a link between two places key to his work and his person, namely Israel and India. About the latter, of course, Galanter has written extensively. But to be more precise, the link focused on in this article is actually that between traditional Jewish and Hindu legal texts, neither of which are bound to a particular place, and neither of which form any significant theme in Galanter’s writing. My argument is thus inspired by Galanter, and I hope agreeable to him, but not to be blamed on him. The topic addressed in this short article is what law creates or produces. Justice is an obvious answer; order is another. Both concepts have long pedigrees in the realms of legal philosophy and political science, neither of which will be discussed here. Instead, this article focuses on another thing that both Jewish and Hindu jurisprudence claim that law can create—a human, not a biological homo sapiens, but rather the full ideal of what humans were meant to be. Indeed, it is the essential indistinguishability of law and religion in both traditional Judaism and Hinduism that permits the ideal human to be created through religious law.