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Q&A: Empiricism and Common Law versus Rationalism and Continental Law

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Empiricism and Common Law versus Rationalism and Continental Law.

Question

Hello Rabbi,
I would be grateful to ask whether the Rabbi is familiar with writing on the connection (if such a connection in fact exists) between the development of continental law and common law, and empiricism and rationalism—whether as a historical connection, a conceptual one, or the like.
I will try to explain briefly: to the best of my understanding (and if I am mistaken I would be glad to understand), there is a central difference between the legal families I mentioned above. Whereas in the continental system, legal reasoning (as I understand it, at least at its core) is characterized by abstract and systematic thinking (my addition—and perhaps one could even say “rational” thinking), deriving from a general theory a solution to a concrete case, that is, deductive inference; by contrast, the common law system is characterized by an inductive method, developing from case to case and deriving the rule accordingly (I relied on Aharon Barak’s article, "The Legal System in Israel—Its Tradition and Culture").
As I understand it, these differences also characterize the dispute (of course in a very rough and non-concise generalization) between rationalism and empiricism regarding the way information is inferred from reality, respectively. Moreover, as I understand it, the place where these approaches developed is similar as well (especially in the case of common law and empiricism). Whereas continental law initially developed primarily in the Roman Empire and later in Germany and France—similar to rationalism (at least as I understand it with regard to Descartes and Leibniz)—common law developed in Britain, similar to empiricism.
Presumably I have made rough and imprecise generalizations (including broad leaps across time and a narrowing of the thinkers associated with each method), but if I am mistaken in a substantive way (probably regarding the description of the connection between continental law and rationalism—since that philosophical trend already existed in Greece), I would be happy to ask, more specifically, whether the Rabbi knows of writing that connects the development of empiricism with the development of common law and the common ground between those approaches. 
I hope I managed to make myself clear, and of course thank you very much in advance, with blessings for good news.

Answer

I don’t see the parallel you drew between those two legal systems and rationalism and empiricism. I have written, in the spirit of legal theory, about a parallel between the legislation-interpretation distinction and rationalism-empiricism, and from there to Kant’s synthetic a priori. I’m not well-versed in the legal literature, and it would be worth asking legal scholars.

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