July 22, 2015

Roberta Rosenthal Kwall is the Raymond P. Niro Professor at DePaul University College of Law. An internationally renowned scholar and lecturer, Kwall has published books and articles on a wide variety of topics including Jewish law and culture, property law, and intellectual property. She is the author of The Soul of Creativity: Forging a Moral Rights Law for the United States (Stanford University Press), a seminal work on moral rights law. Professor Kwall has received numerous awards for teaching and scholarship, and in 2006 she was designated as one of the 10 Best Law Professors in Illinois by Chicago Lawyer magazine. In addition to her law degree, Kwall also has a Master’s Degree in Jewish Studies.

The following exchange will focus on Professor Kwall’s recent book, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition (Oxford University Press, 2015).

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Dear Professor Kwall,

Let's start this exchange with the basics: Many American Jews, and probably some of the readers of this blog, would define themselves as non-observant 'cultural Jews'. In what way are they mistaken? Why, and in what sense, is cultural Judaism a myth? (In other words, present your thesis…)

Yours,

Shmuel.

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Dear Shmuel,

I would like to begin our exchange by thanking you for the opportunity to participate in this dialogue. You are correct that many Jews in the United States would identify as “cultural Jews”. Typically, this reference is understood to mean a Jew who is not religious but who identifies as Jewish and is even proud of this designation. The much-discussed Pew Report, the 2013 comprehensive study of the American Jewish population, notes that although religious commitment may be comparatively unimportant to most Jews, being Jewish appears to be very important to them. These findings suggest that for those who care about Jewish continuity, it is vital to unbundle what it means to “be Jewish” and to nurture this quality. Toward this end, it is helpful to understand that Jewish law (known as halakhah) and what we think of as Jewish culture are completely intertwined.

As a general matter, most people think of culture and law as completely separate entities and this misperception carries over into how people regard Jewish law. The reality, though, is just the opposite. Both legal systems and the cultures from which they emanate are the products of human enterprise, shaped in response to specific historical circumstances and environmental influences. Any legal system not only reflects the influences of its surrounding culture but also takes these cultural influences into account in its formation and development. The recent Supreme Court decision supporting same-sex marriage is a current illustration of this very phenomenon. Specifically, the Court’s decision can be seen as a response to current social sensibilities concerning this issue.

With respect to Judaism specifically, halakhah (like all law) both reflects and is shaped by social and cultural practices. Jewish law, which is binding upon Jews according to the tradition, produces Jewish culture and Jewish culture produces Jewish law. This interrelationship is clearly evidenced in the formation and application of the Jewish tradition. This tradition has been handed down over the generations and incorporates both the strictly legal precepts formulated by the rabbis as well as the practices relating to Judaism that have been developed among the people. In other words, the Jewish tradition includes an organic legal system that has developed over the centuries as well as evolving cultural practices.

To many people, Jewish law is perceived as a series fixed practices governing primarily ritual conduct that were “issued” long ago and cannot altered. This view of Jewish law completely misunderstands the development of halakhah. Even Orthodox authorities such as Menachem Elon, the former Deputy President of the Supreme Court of Israel, have recognized that Jewish law has developed in human society rather than in Heaven. As a result, the development and formation of Jewish law is the product of human production, despite the tradition’s position that its origin is Divine. As for its content, Jewish law covers far more than ritual matters but extends to virtually all aspects of human behavior including money, sex, and even the order in which one puts on and ties shoes!

Significantly, the content of halakhah not only reflects but also has been shaped by the cultural practices of the Jewish people and by the circumstances in which they have lived. Given that Jews have lived as a minority population in numerous nations and regions, Jewish law also has been influenced by many surrounding majority cultures. This reality of foreign influence is especially apparent in the Jewish laws regarding life cycle events such as birth and death, realities for everyone. Over space and time, Jewish law and culture have borrowed from, and even subverted, cultural elements from the host societies of the Jews. More than a few laws and practices of the Jews have resulted from their distinctive use of these foreign motifs. 

In short, the laws and the cultural aspects of the Jewish tradition are completely intertwined. Therefore, those who claim to be “cultural Jews” cannot help but embrace a degree of Jewish law and tradition regardless of whether they are aware of, or acknowledge, this reality. Two examples involving non-religious matters illustrate this point. The liberal causes and social action models that attract many American Jews derive in large part from the Torah’s command to leave the edges of the fields untouched to benefit the poor and others who are socially disadvantaged. Further, the preoccupation among American Jews with the benefits of intellectual curiosity, also documented in the Pew Report, can be attributable to Judaism’s historically rich textual tradition and respect for education.

Even on a ritual level, many self-denominated cultural Jews celebrate Chanukah, Passover and fast on Yom Kippur, although they do not necessarily associate halakhah as the source of these behaviors. Many cultural Jews still want to celebrate the birth of a male child with a ritual circumcision known as a brit (or a naming ceremony for a girl) and want to have their children celebrate a Bar or Bat Mitzvah. In fact, magazine articles appeared this past year documenting a new trend: the do-it-yourself Bar Mitzvah that takes the ceremony out of the synagogue and allows for maximum customization of the ceremony to suit the needs of a particular family. Whatever one may think of the merits of this trend, it attests to the importance cultural Jews place upon aspects of the tradition. Similarly, when cultural Jews marry, the ceremony often contains significant Jewish trappings such as a chuppah and the breaking of a glass, even if the spouse is not Jewish.  We also see the importance of Jewish tradition at life’s end given the enduring popularity of the shiva, despite its frequent truncation to a shorter period than the traditional week. All of these examples illustrate the reality that so much of what American Jews do and how they behave has very much been shaped by the norms of the Jewish tradition, norms that embody not only the culture but also halakhah.

I look forward to continuing our discussion.