Textualism or Pragmatism in Torah Study (8/29/26)

I have recently published an article in which a central theme is ambiguity in statutory text. See Townsend ABA Tax Lawyer Article Titled Loper Bright Flip Flops on Chevron Deference: A Tax Lawyer's Perspective (Federal Tax Procedure Blog 8/28/26), here. In this morning’s Torah Study focusing on Deuteronomy 26:1-1:19, Sefaria here, many interesting points were discussed. However, in my mind I veered off into the following question: In Torah interpretation, should the interpreter consider the consequences if the interpretation prevails? (Readers of this blog entry should not spend any time trying to figure out how I got to the question from the Torah reading; it's complex.)

I am a lawyer and this issue plays out in legal interpretation as well. At the expense of lack of nuance in a very complicated subject (statutory or constitutional interpretation), the issue plays out in the debate between so-called textualists (think fomer Justice Scalia and his current acolytes on the Supreme Court) and pragmatists (think retired Justice Breyer and his acolytes on the Supreme Court*). Starkly (without nuance) framed, the issue for text that can have more than one interpretation is between (i) an interpretation of the constitutional or statutory text at the time it was enacted as some mythical reasonable person would have read it regardless of the current consequences of the interpretation (e.g., as a literate (able to read) person in 1789) and (ii) an interpretation that considers the current (2026) consequences of alternative interpretations.

A similar issue arises in Torah interpretation (and of course all Bible interpretation for Jews and for Christians). Stated another way, the issue is whether the reader can update the interpretation to make the interpretation work better in the current world we actually live in? So, in the context of Torah Study, I asked ChatGPT Plus (my current favored AI tool) the following prompt:

In Torah interpretation, should the interpreter consider the consequences if the interpretation prevails?

I link to the entire response here. Please note that I ask the opening prompt and then have an iterative prompt suggested by the ending of the first response.

The ChatGPT Plus conclusion is (after going through details and examples; bold face in original response):

So I would formulate the principle this way:

A Torah interpreter should consider consequences, especially in resolving ambiguity, because the Torah is understood as an integrated normative system whose purposes and values inform the meaning of particular rules. But consequences constrain and inform interpretation; they do not ordinarily supersede an otherwise clear rule.

That makes Torah interpretation, at least in the rabbinic tradition, quite pluralistic in the sense we were discussing with statutory interpretation. Text, linguistic meaning, precedent, traditional interpretive rules, systemic coherence, Torah values, and practical consequences can all enter the interpretive process. The relative weight of consequences depends heavily on whether one is doing peshat exegesis or deciding halakhah.

There is actually a very interesting comparison here with the “absurdity doctrine,” avoidance canons, and consequential reasoning in American statutory interpretation. The analogy is close enough that it may illuminate both traditions, though there are important differences.

Then ChatGPT Plus's response to the iterative follow-through prompt gives examples. But I think—perhaps simplistically—that a better example is the familiar "Eye for eye, tooth for tooth, hand for hand, foot for foot" which I addressed in a prior blog entry: James Kugel on the Shema; JAT on Originalism and Textualism (Jack Townsend Blog 7/24/26), here. As I discuss in the blog, the text seems to be clear, but Judaism interprets the text through a combination of more modern sensibilities (even modern during the rabbinic age long ago by the time Jesus was on earth) and the overall sense of the Torah and Hebrew Bible to not read the text literally to produce an unjust result. In other words, the consequences of literal interpretation require reading other than literal interpretation.

I am on Justice Breyer’s side in statutory interpretation as well. See Stephen Breyer, Pragmatism or Textualism, 138 Harv. L. Rev. 717, 728 (2024), here.

* Justice Kagan famously said the "we're all textualists now" but she falls into the pragmatist camp with Justice Breyer. Of course, for constitutional and statutory interpretation, the text is important. It is always the starting point, just as with Torah (or Bible interpretation generally). But, it is not the ending point for either Judaism or Christianity.