Statutory law refers to laws that are written in codes and that were enacted by a legislative body, such as parliaments, chambers of deputies or senators, or synods of religious people. In this system, judges must adhere to what the written law says in order to issue a ruling.

On the other hand, unwritten law, or common law, is a set of legal rules that are not based on a written code, but on the spirit and customs of the community. These rules are developed gradually based on the decisions of judges who, although they take into account previous decisions, adapt them to new circumstances. This set of judges’ decisions can be put in writing, but that does not mean they become law. They only serve so that other judges can consult them. In that environment there were no bar associations, so the old men of the village, who possessed the wisdom of the time, determined the best ruling in a given situation.

However, in 19th century Europe, with the creation of new nations and the fact that the majority of the population was already urban, there was a need to unify the criteria of the judges and formulate a series of rules that were finally written in codes.

In the Bible, the judges did not have written codes to consult. The prophet Nathan questions King David in the episode of Bathsheba and tells him a fictitious situation where someone who had a large flock took his only animal from another. Nathan asks the king what the punishment should be in this case and David sentences him to death. If the biblical commandments had had the character of written law at that time, David should have consulted Exodus 21:37 which says: “If a man steals a bull or a sheep and kills it or sells it, he must pay the rightful owner five bulls for the bull or four sheep for the sheep” and not have given that sentence.

Jewish jurisprudence retained its nature as unwritten law from the end of biblical times to the beginnings of rabbinic Judaism. Rabbis continually interpreted scripture in ways that allowed the law to adapt to the needs of the moment. Codifying halakha, the law, was expressly discouraged and even forbidden. The Talmud Babli itself is not so much a code as a compilation of a long series of discussions among the sages.

So how did Judaism come to accept the codes of Maimonides and Josef Caro? Just as in 19th-century Europe, Maimonides’ Mishne Torah and Caro’s Shulchan Aruch sought to unify the Jewish people with a single interpretation of the law. Josef Caro defended his work by claiming that Judaism could have an infinite number of Torahs if the interpretations were not unified. But for Rabbi Luria, on the contrary, this multitude of opinions was to be celebrated, since “the souls of Israel” were endowed with different capacities and each one had a little piece of that Great Truth. But as in Europe, over time, written codes were imposed on Judaism. Written law prevailed over oral law. What a pity.

Prepared by Marcos Gojman

Bibliography: Joshua Berman “What is this thing called law?” Published in Mosaic.