On the Brian Lehrer show yesterday, Doug Rushkoff suggested that the U.S. Constitution and the Talmud are open source projects. This strikes me as, well, overstated.
In the context of open source biotechnology, I’ve written about the “hacker culture” required to support open source norms. This sort of culture, I think, is very different than a contractual community established by a constitutional document or an interpretive community surrounding a set of canonical sacred scriptures.
It’s true, as Rushkoff noted on Lehrer’s show, that constitutions usually provide procedures for amendment, and of course the U.S. Constitution has been amended numerous times. Those procedures, however, typically reflect the agreement of the community governed by the constitutional document that amendements should be difficult and rare. Article V of the U.S. Constitution, for example, requires a two-thirds vote of Congress or an application by the legislatures of two-thirds of the states, followed by ratification by three-fourths of the states. If this is “open source,” then “open source” simply means “possible, though exceptionally difficult, to change.”
The Talmud presents a more interesting example, because there is significant diversity in the various Talmudic traditions, although the Orthodox tradition resists the notion of historical editorial change in the oral law reflected in the Talmud. However, the Talmud expounds and interprets the written law, the Torah. The Talmud therefore reflects the activity of interpretive communities connected to a “closed source” written law. I think most of the writers of the Talmud would have been horrified to have been portrayed as “hacking” the Torah. If the Talmud was an “open source” project, then we can apply the term “open source” anachronistically to every interpretive community that ever existed — which might include everyone who has ever read a text.