Daniel Mark, Politics PhD Candidate

Perjury and the Power of the Court

Date: 
Mon, 12/08/2008
Location: 
4:30 - 6 PM, Kerstetter Room, Marx Hall

This week, we are featuring "Perjury and the Power of the Court,” a paper by Daniel Mark who is a graduate student from the Politics Department. His paper raises issues of legal interpretation (and what justifies theories of legal interpretation), legal authority (and what gives judges the power to offer authoritative versions of law), and legal authorship (and to what extent textual ambiguity should be resolved in favor of non-textual sources of law).

Abstract

The paper begins with a question about perjury in Jewish law: why the court punishes perjurers who are caught before the falsely accused defendant has been punished but not perjurers who are "lucky" enough to be caught only after the defendant has been punished. The paper explores possible explanations for the rule in question, including the court's desire to withhold atonement as received through earthly punishment, the court's desire not to execute further people, and its desire to protect its own legitimacy by not vacating a judgment that has already been carried out through punishment. I locate the court's power to effectively ignore the guilt of the perjurers (by not punishing them) in favor of its original judgment within a larger discussion of the nature of Jewish law and the power of the rabbis to announce legal fictions that take the force of reality. The different explanations for the special rules in this case of perjury suggest different degrees to which the divine element in Jewish law might be playing a role in the court's actions.

For those who just can't get enough, the paper concludes with an appendix in which I align this case study with the critique of Robert Cover by Suzanne Stone that Jewish law is fundamentally not comparable to American law because of the centrality of the divine element in Jewish law. This peculiarity in the laws of perjury is an example of this difference because the explanation for the peculiar rule depends upon the divine element in Jewish law which allows the court to defy our ordinary sense of justice (that more severe crimes should be treated no more leniently than less severe ones). This argument may overstate the difference between Cover's points and my own and needs to be rethought, which is why it appears in an appendix

LEGS, or "Law-Engaged Graduate Students," meets once every two weeks during the academic year to discuss a work in progress by one of our Graduate Associates. Academic papers, dissertation proposals, and dissertation chapters have been presented at these meetings, to an audience of fellow graduate students.