Metaphysical Federalism as a Model for Free Will

The classic articulation of the problem of free will in Jewish thought is “Everything is known yet we are free.” I would like to suggest that federalism offers a solution within the Jewish tradition to this tension. For example, it is written that G-D alienates the responsibility to set the calendar to the Sanhedrin so completely that when the angels ask G-D a question about the calendar G-D instructs them to consult the Sanhedrin. There are several other examples of this. This is perfectly compatible with G-D’s sovereignty if only because there is not supposed to be any true separation between the Divine and the one who carries out the Divine Will by fulfilling a mitzvah. This is a model of shared sovereignty characteristic of federalism.

There is a sense in which each individual is similarly empowered by the Covenant as a constitution. Like any constitution this empowers the authorities at the same time as it limits that authority. Everything may be known, but it still falls to the discretion of that “level of government” to decide.

Law as Productive Tension

They say hard cases make bad law. It is unclear to me why this should be. A hard case is a situation in which right meets right, i.e. in which one legitimate interest or principle meets another. Good law is born of this tension. It is at its best when it makes this tension productive. Good law is an expression of the desire to live together at the level of principle. Justice is this harmony and provides the framework in which real people can live.

They say a paradox is just a contradiction we haven’t given up on yet. This is a good description of the judge’s task in a hard case and makes clear precisely what the failure it is. Taking one side over the other does not resolve the paradox. It is giving up.