Jewish scribe copying out a scroll, 1958

Karaite Judaism, by rejecting the Rabbinite oral law, seems to commit a heresy against the interpretive techniques that define what most people, Jew and goy alike, imagine to be Jewish thought. For partisans of the Rabbinic movement, then, the temptation arises to delegitimize Karaism on its own terms, to prove that it is somehow not authentically Jewish. This was my first reaction to Karaism. Unfortunately, such a stance leads nowhere, at least nowhere that I wanted to go. Mr. Garelick’s project on Karaism throttles that temptation, and instead explains how the Karaite provocation can clarify the Rabbinite stance. I would like to extend that aim by proposing an analogy between these two Jewish hermeneutical systems and two similarly competing strains of American jurisprudence.

In deciding a law’s validity, the dominant ideology of constitutionalism draws not only on the text of the Constitution itself but on the written opinions of past jurists who have decided similar questions. These opinions are validated, in turn, not by the clarity with which they hew to the text, but by the usefulness of the tools that they produce. One category of juridical tool is what is known as a “test,” which is supposed to clarify the (at times intentionally) vague language of the legal authority being interpreted.

Judges have devised a set of tests to determine, for example, whether a law violates the Equal Protection Clause of the 14th Amendment. Does any law that distinguishes between people violate equal protection? Not according to widely accepted tests. If a law singles out an “ordinary class” of people—residents of urban areas, say—it faces what’s called an “easy test,” and is presumed to be valid unless counsel can show that it advances no conceivable rational state interest. If a law targets a “suspect class”—a group that has historically faced unfair discrimination, such as a racial group—it faces a “hard test” (also called “strict scrutiny”), and is presumed to be invalid unless counsel can show that it advances a compelling interest.

Of course, the fact that we have such tests does not mean that ruling on equal protection cases is made trivial. Conservatives argue that homosexuals are not a suspect class, and that laws forbidding gay marriage should therefore face an easy test. When the Supreme Court inevitably hears a challenge to the Defense of Marriage Act, the question of which test to use will surely be a major consideration. And while laws targeting a racial group have generally faced an unambiguous hard test, laws targeting women have sometimes faced “intermediate scrutiny,” as opposed to the “strict scrutiny” of a hard test or “rational basis review” of an easy test. In order to pass “intermediate scrutiny,” it must be shown that the law under consideration advances an important state interest in a way that is substantially related to that interest.

The Rabbinite obligation to the weedlike mess of interpretive tradition is apparent in this modern approach to jurisprudence. Though its appearance is not nearly so exotic, I contend that the scheme of constitutional scrutiny evokes the same “bewildering litany of strangenesses” that a Rabbinic interpreter faces. If this test is supposed to clarify the equal protection clause, why does it point us to an even wider range of questions? Within what parameters do we determine historically unfair discrimination? Where should intermediate scrutiny be applied, other than in cases of gender distinction? What is a rational interest? What is a compelling interest? What is an important state interest?

Although a judge is charged with interpreting the law, no one would dream of deciding an equal protection case without a discussion of scrutiny. Tools such as this one emerge historically in our jurisprudence and are honed and refined by successive generations. Yet jurists are bound by the principle of stare decisis not to disturb settled, precedented legal matters. Despite the refrain of conservative constitutionalists that the Constitution does not specify a right to an abortion, Roe v. Wade will not be overturned unless the Court can devise a new legal standard of review, not necessarily one that reflects a plain reading of the Constitution, but one that accounts decisively for the arguments made in Roe.

At the same time, this juridical ideology allows for the same kind of freedom and mobility that the Rabbinic tradition affords. For example, federal courts have never found members of an income group to be a suspect class. However, a California court did almost that in the 1980s when it found that a landlord discriminated against poor renters by charging 3 months’ rent as security deposit (of course, the responsible judge, a personal hero of mine, was thrown out by voters in a vile smear campaign a few years later). Who’s to say that a federal judge won’t some day resurrect Justice Rose Bird’s opinion and strike down a law that fails strict scrutiny on the basis of income discrimination?

On the other hand, some jurists, especially conservatives such as Robert Bork, Clarence Thomas, and Antonin Scalia, adhere to the doctrines of originalism, which prioritizes the original intended meaning of the text, and textualism, which prioritizes the plain meaning of the text. Both of these doctrines are incidental to mainstream jurisprudence. Karaitic interpretation, similarly, understands the words of the Torah in terms of what they would mean to the Israelites who received them. This is not quite the same as Justice Antonin Scalia's brand of authorial originalism, which looks to the intent of the framers to direct his review, but close kin. Of course, no modern jurist fully rejects the obligations to case law and stare decisis the way Karaism rejects the oral law. So Scalia is a bit like a Jew born into a Rabbinic community, and thus bound by its procedures while harboring his own Karaitic tendencies. Strangely, the flexibility of our jurisprudence actually allows Scalia to pursue those tendencies without repudiating the whole system.

Karaites claim that the only authority is scripture itself, and reject oral law because it relies on the authority of the Rabbis. Conservative constitutionalists (motivated, perhaps, by a certain Protestant insistence upon the a priori legitimacy of a layman’s reading of the Bible?) claim that the only judge of constitutionality is adherence to the literal text of the document. In other words, these ideologies reject human authority in favor of the natural authority of reason itself. I would argue that this rational access to scripture/text cannot, on its own, produce an authoritatively valid legal code. In theory, if not in practice, a Karaite Jew could reject his community’s interpretation of scripture, and devise his own ritual program based on his own interpretation, just as the Protestants did in Europe. I concede, of course, that Karaism nonetheless maintains a coherent tradition, but its effect as law is not connected to Karaitic hermeneutics. Karaism does rely on human authority to thwart errancy and thereby sustain tradition, as do all legal systems. In fact, according to Mr. Garelick, “in many of its iterations, Karaite tradition is filled out by borrowing from Rabbinic tradition.” The great advantage of the oral law is that the social relationship that authorizes the legal code—the march of generations, handing down the oral Torah from one to the next—is built into Rabbinic scriptural ideology.

But this is not meant to be an exercise in validation, or any other claim to truth or authenticity. During the period of the Second Temple, the Sadducees were a Jewish sect distinguished by their rivalry with the Pharisees, a Rabbinic sect, and associated (though not coterminous) with the “Temple aristocracy.” The Sadducees never existed outside Israel, since their religious roles were heavily bound to Temple service. Although the Karaite sect only emerged centuries later, they consider themselves to be heirs to the Sadducee tradition, which, like Karaism, held oral law to be an unwarranted addition to written scripture. Rabbinical Judaism, on the other hand, was the product of more than a millennium of ritual innovations related to the exile of the Jewish people, which began about 600 BCE with the Babylonian siege of Jerusalem and the destruction of the First Temple. Since the Torah’s religious system depended, for its literal fulfillment, on the existence of the Temple and the availability of holy things, Jews in exile were forced to improvise, to escape literalism. After the Second Temple was destroyed in 70 CE, the Sadducees ceased to exist as a religious phenomenon. Rabbinism became, and has remained, the dominant Jewish hermeneutic.

Karaites do, of course, submit to the need for improvisation and innovation. The capacity to improvise is perhaps necessary for the survival of any cultural system. We could restate the difference between the two sects, then, by saying that Rabbinic invention is authorized by scripture (the Rabbinic interpretation of scripture) while the authority of Karaite innovations must itself be invented. In the same way, conservative constitutionalism is forced to start from scratch when a new question arises, whereas a legally trained jurist inherits an arsenal of improvisatory techniques from past scholars. It is not only the freedom to invent, but the positive injunction to validate such inventions, that ensures the continued utility of the Rabbinic and modern legal systems.

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