Judaism & Jewish Philosophy: A Selected Bibliography

Having recently posted bibliographies for Hinduism, Classical Chinese Worldviews, and Buddhism as part of the larger Directed Reading series, we move on to the so-called Western monotheistic traditions of Judaism, Christianity, and Islam, sometimes referred to as the "religions of Abraham." And "so-called" because the geo-historical boundaries between East and West are not sharp, in this instance illustrated by the fact that these are Semitic worldviews, the word Semite referring to "a member of any of various ancient and modern people originating in southwestern Asia, including Akkadians, Canaanites, Phoenicians, Hebrews, Arabs, and Ethiopian Semites." Yet it is these Semitic traditions that are central to what we call Western civilization(s). The fuzziness of geo-historical boundaries is reinforced with the case of Zoroastrianism, often cited as "uniquely important in the history of religion because of its possible formative links to both Western and Eastern religious traditions." Indeed, those links are indirectly or implicitly revealed in Barbara Holdrege's groundbreaking comparative study, Veda and Torah: Transcending the Textuality of Scripture (1995).

The oldest of these Semitic religious worldviews is of course Judaism, and hence the first of our next three bibliographies. Yet our list goes beyond religion as such in so far as many self-described Jews are of secular or humanist orientation and thus not religious, however much they identify with this or that aspect of Jewish history, culture or philosophy, or even simply the modern state of Israel. Modern narratives of Western intellectual history rightly grant pride of place to such emblematic or iconic secular Jews as Marx, Freud and Einstein, thereby according a rather different meaning to the adjectival phrase "Judeo-Christian" when speaking to the character of Western civilization (its other face being Greco-Roman; and we might endeavor to appreciate the Islamo-Christian quality of this civilization as well). For our bibliography, this secular or humanist Jewish dimension is confined to that which falls within the rubric of Jewish philosophy and explains the title of this particular compilation.

Perhaps needless to say, there are no hard and fast boundaries between religion and philosophy, a fact far easier to appreciate in the case of Asian worldviews but no less important with regard to Western civilization(s). For instance, the theodicy question that arises from an examination of the problem of evil in theistic belief (i.e., belief in an omnipotent, omniscient and omnibenevolent deity alongside the facts of suffering and evil as intrinsic to the human condition) is an unavoidable one for all sincere Jews, Christians and Muslims, a question that appears resistant if not unamenable to rationalist resolution but is no less urgent for all that. Now even if one is not a theist, as are atheists or agnostics (keeping in mind that one might, like the Buddhist, be religious and non-theist), the question of evil or suffering simpliciter is unavoidable and the possible answers, while now of "naturalist" or "materialist" construction, are no less poignant or urgent, at the very least they are not ready-made. More generally, discussions of the "meaning of life" make mincemeat of sharp divisions between religion and philosophy (even if there was a time in the world of anglophone analytic philosophy when this would have been derisively dismissed as a 'pseudo-' or meaningless question!), and one of the merits of non-religious existentialist philosophy (or humanistic psychology for that matter) is that it confronted this topic in a forthright and relatively clear manner (cf. Owen Flanagan's The Really Hard Problem: Meaning in a Material World, 2007, a recent attempt to deal seriously with this 'meaning' question from the premises of a naturalistic metaphysics). We might, with John Haldane (in his essay, 'On the Very Idea of Spiritual Values,' in Anthony O'Hear, ed., Philosophy, the Good, the True and the Beautiful, 2000), think too of the perspectives provided by non-religious yet "spiritual" philosophies, such as the Hellenistic "therapies of desire" analyzed by Martha Nussbaum. Jewish philosophy may be avowedly non-religious, but perhaps on occasion it is nevertheless "spiritual," in either case it does not avoid the inevitable question of evil and suffering.

It is not only the treatment of common topics or questions, or the focus on particular kinds of experience, virtue ethics and contemplation, that make the boundaries between religions and philosophies porous, but the vigorous cognitive or rational dimensions found within religions (cf. James Kellenberger's outline of the 'third perspective' in The Cognitivity of Religion: Three Perspectives, 1985; the 'natural theology' tradition of Catholicism; and Oliver Leaman's remark in A Brief Introduction to Islamic Philosophy, 1999, that 'I do not know if it is ever useful to rank religions with respect to rationality, but were this to be done, there is little doubt that Islam would score highly. There are many references to the importance of reason in the Qur'an, and Islam seems to take pride, at least in its early years, in presenting itself as highly rational.') that likewise attest to the welcome and ineluctable philosophical permeability of religious worldviews. The figure of Moses Maimonides, for instance, is compelling evidence of the proposition that it is not always easy to distinguish Jewish religious tradition from Jewish philosophical tradition. Philosophy is a strong and essential element of the Oral Law in Judaism and it came to be an equally vibrant component of the kabbalistic mystical tradition (As Leaman notes, 'In most cases, the mystical understandings of Judaism had no difficulty in linking up with the rational and legal approach....').

Tribe's Invisible Constitution

Constitutional scholars are inclined to dub their favorite conceptions of American constitutionalism as a Constitution of a certain kind. Here are some examples: the living Constitution, the perfect Constitution, the strategic constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, the dead Constitution, the enduring Constitution, and the Constitution in exile. Laurence Tribe, one of the most influential constitutional scholars of the twentieth century, has now added to this list with his new book, The Invisible Constitution. Anything Tribe writes is worth the read, especially one taking a stand on the jurisprudence of constitutional law. In this book, Tribe sets himself two goals. First, he wants to demonstrate that there exists an invisible Constitution which is as authoritative as the written Constitution; indeed, in some respects, it is even more authoritative. Second, he proposes several models for discerning just what this invisible Constitution says. Here is his statement of the invisible Constitution.

[I]t seems obvious that we must have an invisible Constitution as well as a visible one: it's the invisible Constitution that tells us what text to accept as the visible Constitution of the United States, as well as how much force to ascribe to that text. True, we can argue endlessly about just what the invisible Constitution says--but that doesn't distinguish it from the visible Constitution, whose meaning, and even whose contents, are often very much in contention. The visible Constitution most of us have come to accept or at least to work within certainly doesn't answer very many persistent questions about what it means in any particular case and at any particular time. (p. 7)

The invisible Constitution is necessary for us to understand the visible Constitution in the first place. Many questions we ask about the Constitution and its implications are not contained in either the text or in the original meaning of the Constitution. For Tribe "the visible Constitution necessarily floats in a vast and deep--and, crucially, invisible--ocean of ideas, proposition, recovered memories, and imagined experiences that the Constitution as a whole puts us in a position to glimpse." (p. 9) This view differs from the idea of an unwritten Constitution in two ways: (1) Tribe's task is not an attempt to justify unelected judges monitoring the constitutional choices of other constitutional actors. Rather, it applies to anyone attempting to interpret the Constitution. (2) More importantly, Tribe's "interest is less in what's invisible "around" the Constitution than in what is invisible within it." (p. 10) Consequently, Tribe is not taking sides on the issue of whether the Court is or should the proper constitutional actor to have the final say on constitutional meaning. His task is to seek the extra-textual constitutionality within the textual constitution itself for any interpreter of the Constitution.

According to Tribe, none of the conventional questions about interpretation can make sense independently of the invisible Constitution. For example, concerning the use of originalism and history in constitutional interpretation, Tribe insists that our job is to determine whether rules,

retain their 'original meaning' as reflected in the authors' specific expectations or believe instead that such rules express more general principles or concepts that need to be adapted to changing circumstances if they are to remain faithful to their original purposes. Deciding what the relevant 'history' . . . is, as well as discovering the facts pertinent to that history, will entail making fundamental choices about what fidelity in historical and purposive interpretation means about what kind of rule we are dealing with, and about the appropriate frame of reference through which (and the appropriate level of generality at which) to understand the history bearing on that sort of rule, And for none of those choices should we expect much guidance from the text--from the visible Constitution. (p. 67)

Tribe is surely correct that these questions must be answered in order for us to appeal to textual provisions and apply them to particular constitutional controversies. But why should these extra-textual activities suggest the existence of an invisible Constitutional. Ordinarily, these questions are part of constitutional theory or constitutional jurisprudence and do not suggest the existence of an invisible Constitution in any illuminating sense.

The major problem with Tribe's project is the distinction between what is in the Constitution and what's around it. This distinction is not pellucid and simply will not do the work Tribe needs it to do in order to distinguish his position from those advocating the unwritten Constitution and other forms of extra-textual constitutionality. However, Tribe needs to distinguish his position from these scholars if his "invisible Constitution" is to retain any uniqueness or for Tribe's views to make an original contribution to constitutional theory at all. His penchant for insisting that there exist "invisible, nontextual foundations" (p. 11) to the visible Constitution doesn't add much to the work of such different constitutional scholars as Bruce Ackerman, Ronald Dworkin, and Thomas Grey, among many others. Tribe is not merely speaking of non-textual presumptions, assumptions, or implicit rights and powers. He seems to be making an astonishing ontological claim that there exists an independent, coherent invisible Constitution that if made visible (textual) would constitute a distinctly different and independent constitutional document than the written Constitution. If Tribe's view doesn't reveal such a "document," it really becomes indistinguishable from the views of those scholars that acknowledge the existence and importance of extra-textual constitutionality, the necessarily oil that makes the engine of the written Constitution work.

Where Tribe's position promises to be original is in providing a method according to "which we might best visualize and articulate the rules, principles, and rights that are part of out Constitution but are not discernible in or directly derivable from portions of its text." (p. 155) The process of visualizing the rules and rights in the invisible Constitution is more "a question amenable in the first instance less to theory than to observation." (Id.) Tribe suggests six models for observing the invisible Constitution. In fact, Tribe identifies "six distinct but overlapping modes of construction in forming the invisible constitution: geometric, geodesic, global, geological, gravitational, and gyroscopic." (Id.) These models are drawn in color, different colors having independent significance for identifying different aspects of the invisible Constitution. (The diagrams are presented between pages 156-57. ) Here's where an overwhelming difficulty in Tribe's presentation occurs. There is absolutely no real guidance in how to understand these diagrams. Perhaps for those with a sufficient background in the sciences, including the idea of the 'dark matter' they're supposed to discover, these models will make some intuitive sense, but they will make no sense to many others. How many constitutional scholars will find these diagrams useful, let alone perspicuous? Indeed, how many intellectuals generally or educated members of the general public will appreciate the significance of these diagrams? Certainly law students will be mystified. I make no claim about whether the models Tribe describes are accurately illustrated by his diagrams. Indeed, it's difficult to appreciate what counts as "correct illustrations" in this context. Unfortunately, this leaves us in the unenviable position of having no way to know whether these models have the capacity to identify Tribe's invisible Constitution. One thing we can be pretty certain of is this. Whether these models identify the invisible Constitution, even if we can supply an intelligible notion of what that means, it will not be obvious that they do so. One is only left to puzzle over what possessed this first-rate constitutional scholar to indulge his own idiosyncratic predilections in constructing these models--which he obviously finds illuminating--and present them as illuminating vehicles for understanding something called the "invisible Constitution." Unfortunately, together with the unoriginality of the first part of his book--in positing the existence of an invisible Constitution in contrast to an unwritten Constitution, and other forms of extra-textual constitutionality--and the incomprehensibility of the second part of this book, one can only ruefully conclude that this book is disappointing. This does not mean there is nothing of value in this book. Tribe aptly demonstrates that textual constitutionality cannot be understood without non-textual assumptions. But this is hardly novel. So-called non-interpretivists, realists, pragmatists and others have been urging this conclusion for the past several decades. Moreover, such a demonstration says nothing about the existence of anything accurately called "the invisible Constitution" or the models for identifying its existence. I conclude reluctantly that the Invisible Constitution will not provide a significant addition to the work on extra-textual constitutional meaning.

We Are All Judicial Activists Now

Our own Professor Lipkin has made available his latest publication, "We Are All Judicial Activists Now," at SSRN [Citation info.: Lipkin, Robert Justin, 'We Are All Judicial Activists Now' (February 21, 2009). University of Cincinnati Law Review, Vol. 77, 2008. Available at SSRN: http://ssrn.com/abstract=1347425]. As Larry Solum notes at the Legal Theory Blog, Recommended!