Putting the Bible Back in the Courts: A Critical Analysis (Part 2)

art by: Skid Marx

By Emily Pancake

The Legal Tradition of the Bible

There is a rich history of legal interpretation within the Bible’s tradition. Biblical interpretation runs the full gamut of American sources of law, making it the perfect overlay through which American courts should operate.

First, of course, came the Torah, the divinely ordained Constitution. The Writings and the Prophets provide some nice contextualizing Federalist Papers-eqsue texts that can speak to God’s intent in using certain words and mandating certain practices.[1] The compilers of the Tanakh[2] did a good job establishing the first Biblical Reporter—consider citing the first verse of the Bible as Genesis, 1 Bib. Rep. 1:1 (Year 0) and the aforementioned verse from Isaiah cited in Note 8 as Isaiah, 1 Bib. R. 1:11-17 (Pre-Assyrian Exilic). 

Once the original generation of Biblical legislators who actually spoke with the Grand Legal Authority On High died, the Biblical tradition turned to statutory interpretation and application. First came the Mishnah, compiled around 200 C.E.[3] The legal commentators of the Mishnah looked at the laws in the Torah and said, “Hey God, this is really neat, but what exactly are we supposed to do about keeping kosher with this one kind of oven?” And then they said “Sike, we don’t care what you think, it’s our turn to make law now,” and God said, “Cool.”[4] Take that, originalism, we stan a living document. After the Mishnah generation died off, the Gemara generation realized there were still a lot of unanswered questions about the law and wrote a whole lot more opinions about it. The Gemara got added to the Mishnah, along with a lot of legal commentary from various deans of prestigious Biblical law schools, and became the Talmud. If you want a side of legislative history with your statutes, baby, you got it.

After the Talmud had been bouncing around for a few centuries, the legal realists of the Biblical tradition realized that including all the concurrences and dissents and denied petitions for rehearing in the Talmud was kind of dumb if you wanted to actually know what the law was, so Yaakov ben Asher compiled all the holdings into the Tur and Yosef Karo incorporated that into the Shulchan Aruch. This robust and ever-expanding regulatory code should make administrative lawyers weep with pleasure.

As times have changed, Biblical legal scholarship has risen to meet it—which is more than you can say for secular American law, wherein the black-powder musket traditions of the 1700s are mutilated to regulate submachine guns and high-powered rifles. The advent of electricity posed a host of problems for Sabbath observance; the original “rest on the Sabbath” hadn’t known about light switches, so the Biblical legal authorities of the 20th century made new law based on the intent of the founding documents instead of pretending that turning on a lightbulb is the same as lighting a fire. And today, if you find yourself facing a novel case or controversy, you can ask your local Biblical judge (read: rabbi) for their legal ruling on how to proceed. 

The variance in law between different jurisdictions poses no problem for the Biblical legal tradition. For example, the Sephardi[5] legal code tends to be more straightforward than Ashkenazi interpretations of law—the Ashkenazis are very worried about slippery slopes and legislate accordingly.[6] The denizens of each jurisdiction follow the law as determined by their local courts and do not challenge or refuse to recognize the laws of other jurisdictions; Ashkenazis don’t eat beans on Passover, Sepahrdis and Mizrachis do, and everyone leaves everyone else alone about it. I’m looking at you, states attempting to criminalize traveling to get an abortion in places where abortion is legal. The Full Faith and Credit Clause actually still exists in the Biblical legal tradition, fancy that. 

In sum, the extensive and varied history of Biblical legal interpretation mirrors the American legal system so closely that the two may as well be one and the same. Not only does the Bible belong in the courts, it pretty much is the courts. SCOTUS should fully embrace its Biblical roots and conduct its proceedings in the Biblical fashion and the Biblical language.

1. See e.g., Isaiah 1:11-17. If you can’t read it in the original Hebrew, I’d recommend the newest edition of the JPS Tanakh for accuracy and the original King James Bible for both gorgeous language and an extraordinary margin of translation error. For further commentary on the Christian influences on Biblical translation, ask me about the stress dream I had in college about overreliance on the Vulgate.

2. The Tanakh is the real name of the Hebrew Bible. It’s an abbreviation comprised of the first letters of its three parts: Torah (Five Books of Moses,) Nevi’im (Prophets), and K’tuvim (Writings). It’s pronounced tah-nacchhh, like you’re trying to cough up a hairball. Native English speakers can’t usually make this sound, so try at your own risk.

3. This is a work of satire wherein I am pretending that the overwhelming stranglehold that the Christian hegemony has on the West is a good thing, but I can only go so far. You’re not getting me to use ‘Anno Domini.’ The year of MY Lord is 5783, thank you very much.

4.  See Tractate Bava Metzia, pages 59a-b in the Babylonian Talmud. All my Rabbi Eliezer fangirls pour one out for him somehow losing that argument despite the Divine Mom telling the other rabbis it was his turn on the Xbox. 

5. Jews from the Iberian Peninsula and parts of North Africa are known as Sephardis. Jews from Europe, and particularly Eastern Europe, are Ashkenazis. Jews from the Middle East and other parts of (North) Africa are called Mizrachis (there’s that cchhhhh sound again). Central Asian Jews are also generally Mizrachis. These categories break down further; Bucharian Jews from the Turkey-ish area of the Ottoman empire have their own customs separate from other Mizrachis, and Yekkes (German Jews) did not intermarry with Litvaks (Polish Jews) in the old country. These selective and close-knit marriage practices are how we got Tay-Sachs. 

6.  I am Ashkenazi so I can say that. If you’re not Ashkenazi, keep your mouth shut. We know the Passover bean thing is a stupid practice. We do it anyway.