Herman on Levine, 'Jewish Law and American Law: A Comparative Study, Volume 2' and Levine, 'Jewish Law and American Law: A Comparative Study, Volume 1'

Samuel J. Levine
Marc Herman

Samuel J. Levine. Jewish Law and American Law: A Comparative Study, Volume 2. New York: Touro College Press, 2018. 238 pp. $109.00 (cloth), ISBN 978-1-61811-657-4.Samuel J. Levine. Jewish Law and American Law: A Comparative Study, Volume 1. New York: Touro College Press, 2018. 384 pp. $109.00 (cloth), ISBN 978-1-61811-655-0.

Reviewed by Marc Herman (Yale) Published on H-Judaic (March, 2020) Commissioned by Barbara Krawcowicz (Norwegian University of Science and Technology)

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=54769 

Jewish Law and American Law: A Comparative Study collects twenty-six essays by Samuel J. Levine—all previously published—on an impressive array of topics that fall under the broad headings of the Jewish and American legal traditions and, frequently, the interrelationship between the two. Each chapter displays Levine’s mastery of both legal corpora, through clear arguments and copious documentation of primary sources and secondary literature in both Jewish and American law. The work is divided into eight topically arranged sections; the essays address such diverse subjects as Holocaust-era responsa, prosecutorial ethics, and the possible contributions of Jewish hermeneutics to American constitutional jurisprudence. The subjects of some of the essays overlap and chapters can often be read together fruitfully (e.g., chapters 2 and 3, “An Introduction to Interpretation in Jewish Law, with References to American Legal Theory,” and “An Introduction to Legislation in Jewish Law, with References to the American Legal System”). Other essays stand on their own, such as chapter 22, which analyzes Goldman v. Weinberger (1986), when the US Supreme Court evaluated the propriety of an Air Force psychologist wearing a skullcap in a military hospital, and chapter 19, which traces the history of an antisemitic legend in legal writing, from its appearance in a nineteenth-century Irish periodical to an early twentieth-century American textbook.

In the programmatic essays in these volumes, Levine articulates—with impressive force—the idea that the Jewish legal tradition has a great deal to add to contemporary American legal thought. This position also underlies Levine’s discussions of three themes: the ethical and legal values that inform debates about capital punishment (section 2); the constitutional protections against self-incrimination (section 3, where Levine explicates and interrogates Chief Justice Earl Warren’s citation of Moses Maimonides and other Jewish thinkers); and methodological considerations in constitutional interpretation (section 5). Levine, however, does not explain precisely why Jewish law is better able to contribute to American jurisprudence than other religious legal traditions, such as Islamic law or Hindu law, nor does he explore, except in passing, if or how American law might help researchers reconsider ideas penned by Jewish jurists. And when Jewish law is disappointingly silent on central problems that Levine seeks to tackle, he turns to broad and often vague ethical exhortations of the Jewish tradition (e.g., his discussion of the ethical demands placed on American lawyers is informed by a sweeping call to realize Jewish ethics in all aspects of daily life; vol. 1, p. 233).

Levine explicitly participates in a larger discourse within the legal academy that looks to Robert Cover (1943-86) as its pioneer. Rather than methodological innovation, then, Levine’s strength is his deep engagement with Jewish legal sources and their long history of interpretation. Writing about capital punishment, Levine explains: “It is not uncommon to find both proponents and opponents of the death penalty attempting to support their respective positions through citations of sources in Jewish law. Such attempts, however, often fail to consider the full range of Jewish legal scholarship, relying on a few sources that appear, superficially, to favor one position over the other” (vol. 1, p. 85). Levine instead provides a richer—albeit terse—account of Jewish perspectives on capital punishment. (I am not sure, however, how Levine knows that the mishnaic voices opposing the death penalty “did not represent the opinions of the majority of mainstream Jewish legal authorities”; vol. 1, p. 93.)

Readers should be cautious in using Levine’s presentations as critical summaries of Jewish law. First, Levine’s sources and interpretations place him squarely within contemporary American Orthodox Judaism. Thus, citations of rabbis Joseph B. Soloveitchik (1903-93), Aaron Lichtenstein (1933-2015), J. D. Bleich (b. 1936), Herschel Schachter (b. 1941), and Asher Weiss (b. 1953) populate the pages of these volumes. Soloveitchik in particular features prominently in Levine’s discussion of capital punishment (vol 1, pp. 112-20), his treatment of Robert Cover (vol. 2, pp. 25-28), and his attempts to derive lessons from the biblical Abraham to the contemporary Jewish community’s approach to public policy (vol. 2, pp. 175-79) But Levine seldom discusses the modern inputs that helped shape Soloveitchik’s presentations of Jewish tradition. Moreover, since, with one exception, these figures are associated with the same institution, it is fair to ask why Levine does not really engage with other approaches to Jewish law that have developed in the twentieth and twenty-first centuries. (Similarly, Levine’s transliteration system is not one used in academic writings today but instead largely reflects the approach of contemporary Orthodox Jewish publications.)

Second, Levine takes a positivist approach to Jewish sources. His discussion of the Sanhedrin, for example, takes the existence and nature of that institution at face value (vol 1, p. 55), and he twice repeats the idea that Jewish law is comprised of 613 commandments (vol. 1, pp. 166, 344), a principle that played little role in legal discussions of the Talmud itself, at the very least. These assertions, although grounded in Jewish tradition, cannot be repeated in a university classroom without significant caveats. In these and other instances it seems that the setting of the legal academy has enabled Levine to circumvent historical questions.

Third, and this is a related but deeper issue, Levine has little time for critical approaches to Jewish law or for academic study of the Talmud. Although he mentions the contemporary scholar of midrash David Stern (vol. 2, p. 21) and has an essay about Cover’s work (chapter 17), Levine expresses scant interest in Jewish studies as it is currently conceived or in the historical study of Jewish law. The choice to disengage from these larger scholarly endeavors, unfortunately, means that the insights of the legal academy will remain estranged from historical and social scientific inquiry. It is also something of a lost opportunity; Levine’s insights into how the modern experienced has shaped Jewish law and what the American legal tradition might contribute to contemporary Jewish legal discourse would be truly enlightening.

Taken together, the essays in these volumes constitute a salutary effort to investigate a wide range of topics in Jewish law, modern legal history, and American jurisprudence through the lens of Jewish law. Readers will find that these illuminating essays provide an in-depth account of the issues at hand.

Marc Herman is a research fellow at the Abdallah S. Kamel Center for the Study of Islamic Law and Civilization, Yale Law School.

Citation: Marc Herman. Review of Levine, Samuel J., Jewish Law and American Law: A Comparative Study, Volume 2 and Levine, Samuel J., Jewish Law and American Law: A Comparative Study, Volume 1. H-Judaic, H-Net Reviews. March, 2020. URL: http://www.h-net.org/reviews/showrev.php?id=54769

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.