I love Ethan Leib’s interesting idea of reading the legal pronouncements of Jewish liturgy in light of later legal developments–and vice versa.
Ethan suggests creatively that an allusion to the liturgy of Yom Kippur (the Jewish day of atonement) may be found in Cardozo’s famous opinion in Jacob & Youngs v. Kent: “The willful transgressor must accept the penalty of his transgression. . . . The transgressor whose default is unintentional and trivial may hope for mercy if he will offer atonement for his wrong.”
Jacob & Youngs is a contracts case and its reference to transgression and atonement reminds Ethan of the familiar vow nullification formula of the Kol Nidre prayer, whose hallowed words (as translated here by Birnbaum) are, at least cantorially speaking, the high water mark of the Yom Kippur synagogue service: “All personal vows we are likely to make, all personal oaths and pledges we are likely to take between this Yom Kippur and the next Yom Kippur, we publicly renounce. Let them all be relinquished and abandoned, null and void, neither firm nor established. Let our personal vows, pledges and oaths be considered neither vows nor pledges nor oaths.”
Casting Cardozo in a liturgical light is certainly a new twist. Ethan wonders “What kind of law can contemplate the routine nullification of promises year after year? Probably not one based on promissory liability at its core.” Ethan defends the nullification doctrine of the Kol Nidre prayer on the ground that it “applies only to promises made with oneself or with god, not standard commercial promises made between people.” But let me suggest an additional, perhaps less apologetic and somewhat broader defense that is consistent with modern contract theory.
If you look at the Kol Nidre text closely you’ll see that it’s not a renunciation of past promises but is rather written prospectively and concerns next year’s promises rather than this year’s. Judaism’s vow nullification service is in essence a public warning not to rely too heavily on any future promises that the penitent might make but fail to fulfill in the coming year. If you think about it, it’s a pretty clever device to defeat future reliance claims on future commitments that might be breached. Why did you rely on me?, the penitent can argue. Didn’t you hear my anticipatory renunciation of this promise last Yom Kippur? And if you didn’t actually hear it, why shouldn’t the public character of the Kol Nidre service operate as constructive notice?
Kol Nidre has a powerful psychological effect on the faith community that utters it, which perhaps accounts for an exagerated theological significance that is otherwise difficult to explain. By offering and accepting a prayer of mutual prospective renunciation, members of the faith community in effect become morally bound to waive all future promissory claims against other members and maintain a prospective posture of mutual reciprocal forgiveness. Perhaps someone should offer such a prayer at the start of faculty meetings!
