Monday, June 20, 2022

The Art of Legal Interpretation

Guest Blogger

This post was prepared for a roundtable on Law, Literature, and Other Performing Arts, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Samuel Levine

It is both a pleasure and an honor to participate in this fitting tribute to Sandy Levinson. Over the years, I have had the opportunity to engage Sandy's scholarship, both in person and in writing, across a number of areas in which we share considerable interest, including, among others, constitutional law and interpretation, law and religion, legal ethics, legal history, and the work of Robert Cover. In addition to appreciating a common interest in these fields of inquiry, I have repeatedly been drawn to Sandy's incorporation, sometimes expressly and at other times implicitly, of themes related to Jewish law and Jewish thought, themes I have often explored and expounded substantially in my own scholarship. As it turns out, the co-authored article I have been asked to discuss for the LevinsonFest, Law, Music, and Other Performing Arts,[1] contains few references to Jewish themes.[2] At the same time, the article focuses on a number of important issues that prove central in Jewish law and tradition. Accordingly, this reflection paper will briefly address three interrelated issues, comparing and contrasting Levinson's analysis with discussions found in sources of Jewish law and tradition.

First, as the title of Levinson's article indicates, the basic premise he develops in the piece is the recognition that law is an art—perhaps even a "performing art"—akin to music, thus to be distinguished, in important ways, from a science. As such, Levinson positions Richard Posner, as a foil of sorts, representing the view that as disciplines, the study and practice of law and legal interpretation remain far removed from literature and similar fields of seemingly less precise methods of interpretation.[3] For many centuries, Jewish legal authorities have observed that by its nature, legal interpretation resists analogies to the exact sciences. For example, writing in the thirteenth century, Nachmanides identified an inherent difference between legal reasoning and the logic of engineering.[4] While it is possible in engineering to prove demonstrably, with mathematical precision, that a particular theory is correct, legal reasoning often involves questions that can be resolved logically in more than one way. The role of a legal interpreter is to examine the evidence motivating each of the possible conclusions, and to determine which conclusion appears most accurate and convincing.[5]

The similarities between Jewish legal interpretation and other forms of literary interpretation are particularly pertinent in the context of Levinson's argument, which acknowledges, at various points, Posner's distinction between interpreting the law, which commands, and literature, which does not.[6] Notably, the Torah and other Jewish legal sources function, most basically, as commands, but owing to their literary form—indeed, owing to the nature of written, or even orally formulated, commands—Jewish legal sources are often inherently susceptible to multiple contrasting interpretations, all of which may be plausible, and each of which takes into account both the literary characteristics and the normative substance of the commands. Perhaps most strikingly, the written text of the Torah has been compared to a song or a poem[7]—a literary form that Posner deems to be paradigmatic of art rather than law.[8]

Of course, the reality of multiple—and alternatively viable—interpretations of a legal text is not unfamiliar to Posner, though Jewish legal thought may provide one of the most dramatic illustrations of this dynamic. The Talmud relates an account of a debate among legal decision makers in which a lone dissenter invokes a series of miraculous events, culminating in the emergence of a heavenly voice, apparently affirming his minority opinion. Nevertheless, the dissenter's opinion is rejected, as the law is to be determined in accordance with the majority view,[9] rendered on the basis of human reasoning—even, as it were, when the majority view contradicts Divine transcendental logic.[10]

Second, the recognition that legal texts and rules often prompt multiple interpretations, not unlike other forms of literary and artistic interpretation, dovetails with another theme underlying Levinson's analysis, the notion that law is better understood—if not best understood—through a broader perspective that draws upon other disciplines, including the arts.[11] After all, among various other functions, the law serves on a fundamental level as a means of representing society's collective assessments of communal and individual roles within social structures. By definition, these assessments incorporate multiple societal interests and perspectives, and thus, would inevitably benefit from incorporating multiple disciplines and areas of study. As Levinson notes, there are, of course, important factors to consider as to the degree of time and attention to be allocated to other disciplines, but these practical questions do not undermine the underlying appreciation for the potential contributions of these fields to the effective interpretation and administration of the law.[12]

Here too, Jewish legal intellectual history may provide a helpful analogue, demonstrating the salience of Levinson's observations, as applied to a legal system that accords centrality to the legal corpus while also recognizing the relevance of other forms of knowledge. Indeed, over many centuries, Jewish legal scholars have explored the potential—if not indispensable—contributions of other disciplines and areas of thought to enhance the interpretation and implementation of the law. At the same time, though, scholars have often debated the relative value of other disciplines, anticipating Levinson's acknowledgment of practical limitations on the amount of time and energy to be dedicated to the study of other fields, vis-à-vis the abiding necessity and priority of mastering legal materials on their own terms.[13]

Finally, as a further corollary to both of these themes, the law's inherent and deep connection to human judgment and social realities complicates—and enriches—efforts to remain faithful to authoritative legal sources and traditions amidst the inevitable changes and differences that emerge within the human experience. In fact, as Levinson emphasizes—perhaps somewhat paradoxically[14]—fidelity to legal principles and traditions may entail a healthy dose of adaptation, necessitating flexibility and modification rather than unflinching repetition of past decisions.[15] Conversely, as Levinson likewise notes in the context of constitutional interpretation--perhaps representative, but certainly not unique as a form of legal interpretation—"[i]t has always been feared, though, that too much 'adaptation' would mean not the endurance, but rather the death of the Constitution."[16]

Not surprisingly, perennial and sometimes perplexing tensions between continuity and change have played a central role in thousands of years of Jewish legal history, during which a Divinely mandated and immutable law has been interpreted and applied through countless changes in time and place.[17] Among many telling illustrations of this dynamic, one of the most instructive may be found in one of the earliest and most momentous transitions in Jewish history, from the leadership of Moses in the desert to the leadership of Moses' most dedicated and faithful student, Joshua, upon entry into the Land of Israel. In short, the Talmud faults Joshua for imposing on the nation a ban against using property from the conquered city of Jericho—an enactment that the nation violated, prompting a Divine punishment.[18] Yet, the Talmud notes that Moses had previously imposed similar bans, seemingly serving as a precedent for Joshua's decision,[19] thus begging the question as to why Joshua's ruling is deemed to be problematic.[20] In response to this question, Talmudic commentators offer an insight with abiding relevance to legal interpretation and decision making, explaining that because societal circumstances had changed considerably, and in crucial ways, Moses would not have imposed the ban in the later times. Accordingly, rather than demonstrating fidelity to the teachings of Moses, Joshua acted in a way that was inconsistent with prior legal principles and traditions.[21]

As Sandy Levinson has demonstrated, both in drawing analogies between law and performing arts, and throughout his remarkable—and still expanding—oeuvre, the art of legal interpretation and legal decision making is inextricably linked with the careful study, and deep appreciation and understanding, of broader societal and intellectual currents. Sandy's work serves as a model for the rest of us, who continue to learn from him and to further apply his insights within our own scholarly pursuits.  

Samuel Levine is Director of the Jewish Law Institute and Professor of Law at the Touro Law Center. You can contact him at

[1] Sanford Levinson & J. M. Balkin, Law, Music, and Other Performing Arts, 139 U. Pa. L. Rev. 1597 (1991).

[2] See id. at 1623.

[3] See id. at 1604.

[4] See Nachmanides, Introduction to Commentary on Rif.

[5] See 1 Samuel J. Levine, Jewish Law and American Law: A Comparative Study 53-60 (1998).

[6] See Levinson & Balkin, supra note 1, at 1607-09.

[7] See Samuel J. Levine, The Constitution As Poetry, 49 Seton Hall L. Rev. 73 (2019).

[8] See Levinson & Balkin, supra note 1, at 1607.

[9] See Babylonian Talmud, Bava Metzia 59b.

[10] See 2 Samuel J. Levine, Jewish Law and American Law: A Comparative Study 29-32 (1998).

[11] See Levinson & Balkin, supra note 1, at 1604-06.

[12] See id. at 1658.

[13] See, e.g., Norman Lamm, Torah Umadda: The Encounter of Religious Learning and Worldly Knowledge in the Jewish Tradition (1990).

[14] See Levinson & Balkin, supra note 1, at 1632 (describing a paradox of authenticity”).

[15] See id. at 1617-27.

[16] Id. at 1654. See also id. at 1654-56.

[17] As Levinson puts it, "[w]hat allows one, for example, to consider him or herself a 'traditional' Jew is surely not some fantasy that one is doing exactly what was done 3000 years ago in ancient Israel, but rather a felt confidence that one is participating as the latest member of a recognizable way of life whose transhistorical identity has endured whatever the surface changes." Id. at 1623.

[18] See Babylonian Talmud, Sanhedrin 44a.

[19] See id. at 43b.

[20] See Commentary of Maharsha.

[21] See Hershel Schachter, B'Ikvei ha-Tzon 1-2 (1997).

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