The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is the seventh and final post in a series on "Genesis 1-11: A New Old Translation for Readers, Scholars, and Translators." My coauthor for this project is the excellent Hebrew scholar John Hobbins. In recent posts I've considered several topics— double translation, physicality (here and here), repetition and figures of speech. What I want to do in this post is to reflect on similarities and dissimilarities between legal interpretation and biblical translation.
Two initial caveats. First, there is already a literature on the analogy between the Constitution and the Bible, with both being foundational texts that control a community's subsequent practice and require interpretation (e.g., works by Jaroslav Pelikan—a church historian who first became interested in the question through his Yale University colleague Alexander Bickel—Samuel J. Levine, Gregory Kalscheur and Sandy Levinson). There is also a literature that conceptualizes the task of interpretation through the metaphor of translation (e.g., works by my colleague Máximo Langer and by Larry Lessig, as well as my own paper on translation and equity). I won't review those literatures in this post.
Second, there are different schools of thought about legal interpretation (e.g., textualism vs. purposivism), just as there are different schools of thought about translation. In this post I'll be pretty ecumenical about legal interpretation, while for biblical translation I will describe, but not defend, the particular approach embodied in our translation of Genesis 1-11. (If you want a defense, see the "To the Reader" and "To the Persistent Reader" essays in our volume.)
Let's begin with a similarity.
Our translation emphasizes inner-textual interpretation, i.e., usage and repetitions in Genesis 1-11 and throughout the Hebrew Bible and New Testament. There's also inter-textual interpretation, that is, reading the text in light of connections with non-biblical texts (e.g., other ancient Near Eastern creation stories, mentioned in our note on Genesis 1:1, as well as the history of subsequent interpretation, both Jewish and Christian). But inner-textual interpretation is more decisive.
Something similar happens in legal interpretation. Interpreters pay some attention to how words are used in other sources. But they give central importance to how words are used in the same source ("inner-textual interpretation"). A famous example is Chief Justice John Marshall's interpretation of "necessary" in McCulloch, reading the word in the necessary and proper clause in light of its usage elsewhere in the Constitution.
(Note that terminology varies: where biblical scholars use "inner-textual," legal scholars tend to use "inter-textual"; where biblical scholars use "inter-textual," legal scholars tend to have other terms such as "legislative history.")
And another similarity:
Form is central to both. I accept as a deep insight the New Critics's attack on the "heresy of paraphrase." As for the biblical text, the brilliant scholar David Daube once gave a lecture about Jewish law that he titled: "The Form is the Message." And so, too, for U.S. law. Codifying common law decisions works a transformation. A Restatement cannot ever really be a restatement; it must inevitably be a different statement, because of its different form, even if the very same words were to be used. (The invocation of Pierre Menard is obligatory.)
And now add a stark difference.
Our translation attends, of course imperfectly, to wordplay, register, physicality. These aspects of language are of almost zero importance in legal texts. That is a contingent fact—one could imagine a legal system in which laws were written in verse, and skillful scanning was a duty of the interpreter, but that system is not ours. For our statute-writers, prose is hard enough.
And now, perhaps most interesting, consider three phenomena that are common to both but for radically different reasons, or which have radically different functions.
First, repetitions matter a lot in legal interpretation and in our translation of Genesis 1-11. But for different reasons. Our translation has the premise that repetition is a way meaning is constructed in biblical stories. That premise has been articulated by others, and I won't stop to defend it here. But the point is that in the book of Genesis, there is a pervasive use of keywords and other forms of verbal and syntactic repetition. Through these repetitions, themes get developed, elaborated and reversed. But when legal interpreters look for repetition, they often assume a constant or static meaning for a term throughout a particular legal text. By contrast, in Genesis 1-11 what matters most is often the variation in the repetition, or the change in the context, or the reversal of a term's significance. (Examples are discussed in the notes for our translation.)
Second, our translation's attention to the construction of meaning through repetitions, echoes and distant inversions is grounded on the idea that we can read not only for the intention of the author and the intention of the reader but also for the intention of the work. This idea can be found in sources as disparate as Umberto Eco and Meister Eckhart. Legal interpreters also read, wittingly or unwittingly, for the intention of the work (some methodologies emphasize this more than others). But there are different groundings for the appeal to the intention of the work—an all-knowing divine author for scripture, vs. multi-member legislative bodies that struggle to express a single intention.
Third, legal texts, such as Genesis 1-11, use figurative language, including figures of speech that are common to many genres of human communication. For law these include hendiadys and synecdoche. But the justifications (positive or normative) for figurative language are very different in the two kinds of texts. Legal interpreters should be on the lookout for figurative language because texts are short (especially constitutions, as noted by Marshall), because a lawmaker has limited knowledge and imagination (as noted by Aristotle), and because language is incapable of exact precision. Biblical translators should also look for figurative language, because it is pervasive in biblical texts, and serves many purposes. It is how we say the unsayable. It is how an author instructs by delighting. It can be a means of opening for some and obscuring for others (as noted by Jesus in his explanation for why he taught in parables in Matthew 13).
So law is like translation, a lot like it on the surface. But deeper down the contrasts are stark. Those very contrasts can help us think more carefully and better about law and about translation, without conflating them. With W.H. Auden, we can say that law is like this and like that. Yet perhaps Auden should have ended his poem "Law, Like Love" with "thinking it absurd / To identify Law with some other word."
(Page references: Aims of our translation are discussed in "To the Reader," pp. 3-13, and "To the Persistent Reader," pp. 41-64. In the Index of Subjects, the entries for "diction" and "puns" and "repetition" will guide you to relevant notes for those topics. The intention of the work, intentio operis, is discussed on p. 8, footnote 5. Another Auden poem, "Friday's Child," is quoted at p. 90, footnote 143.)