Balkinization: Mixed Audiences and Responses: Thoughts on Roberta Kwall’s The Myth of the Cultural Jew

Mixed Audiences and Responses: Thoughts on Roberta Kwall’s The Myth of the Cultural Jew

Sandy Levinson

For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

Roberta Kwall’s The Myth of the Cultural Jew: Culture and Law in the Jewish Tradition deserves a wide readership. But the lessons taught by the book will differ quite substantially depending on which of two audiences pick up the book. One might be readers simply interested in comparative law, who correctly realize that “Jewish law” is at least as interesting a topic of potential study as that of any other country or institution. In all cases, whether one is studying the United States, France, South Africa, canon law within the Roman Catholic Church, sharia within Islam or halacha within Judaism, most of us today would acknowledge connections between the “internal” materials of the legal system—texts, legal decisions, etc.—and the “external” culture within which the legal system operates. Who, after all, in 2015 does not agree with Oliver Wendell Holmes that one must understand both “logic” and “experience” when analyzing any given legal order—or that “experience” will ultimately dominate “logic” with regard to explaining the survival of any legal system over significant spans of time? And just as one cannot understand a legal order without paying attention to the surrounding culture, concomitantly one may well be unable to understand the cultural surround without paying attention to the extent to which aspects of “the law” help to shape it.

Kwall’s book, accessible to those unfamiliar with even the basics of the halachic system, demonstrates that one cannot possibly understand Jewish law without paying attention to broader cultural contexts. It is important to note that these contexts very much include interaction with non-Jews, including, most importantly, Moslems and Christians. But, frankly, I doubt that Kwall’s primary audience, either in terms of her own intentions or the actual likelihood of who will be buying, reading, and discussing the book, will be non-Jewish scholars seeking to burnish their comparativist credentials. For her book is also very much directed to her fellow Jews about the centrality of Halacha to any coherent conception of Judaism—and beyond that, the very prospects for its survival in the future, especially in the United States (the subject of her last chapter). It is not simply the case that she entreats any and all Jewish readers to pay more attention to the halachic underpinnings of their professed identity—even if, or perhaps especially if, they define themselves as “secular Jews,” a term, I believe, that has no analogue with regard, say, to self-identified Catholics or Mormons. And she clearly seems to believe that to be a Jew requires at some level that one believe that “God commanded the Jews to preserve their particularity and gave them a path to guide them in this endeavor,” i.e., the halacha (p. 283).

Although she notes, especially in her final chapters on Israel and the United States, respectively, that a significant number of Jews in both countries define themselves as “non-religious” and, indeed, “secular” in consciousness, she clearly bewails this. It is not too much to say that she regards such data, and the social realities that they reflect, as indicating the baleful triumph of culture over what is indeed distinctive in Judaism. As the late David Hartman (whom she cites) argued, this involves the acceptance of a covenantal relationship with God, even if we are condemned in effect, as Hartman himself was, to spending most of our time wrestling with what this can actually mean given the elusiveness of the Divine Presence.

So I am a member of what I’m suggesting is her primary target audience, though it’s also true that I’m interested in comparative law as well. I certainly publicly identify myself as Jewish, and some of my scholarly work has been very much informed by what I learned about Jewish law and hermeneutics from David Hartman and his marvelous associates at the Shalom Hartman Institute in Jerusalem. However, as I elaborated in a recent essay that I prepared for a symposium organized by Prof. Kwall at DePaul Law School last year on the relationship of one’s Jewish identity to one’s work as a student of the American Constitution, my invaluable time at the Institute did not in one whit make me any more of a “religious” Jew in terms of an internalized commitment to the precepts of the Jewish legal system. Jewish law certainly interests me, but, at the end of day, I feel no more bound by it than by any other foreign legal system. Indeed, from one perspective it may bind me less, inasmuch as I do feel bound by, say, the Italian legal system when I visit Italy or, for that matter, the Israeli legal system when I visit that country, as I frequently do. But that is very different from feeling any bonds to halachic Judaism (although, for reasons of etiquette, I will obey some of its precepts when, for example, I am visiting Orthodox friends).

I am certainly fascinated by the feats of hermeneutic derring-do by Talmudic scholars—and Prof. Kwall writes illuminating chapters about how various halachists have responded to such issues as riding cars to synagogues in order to attend Sabbath services at synagogues too far away from one’s home to make walking truly feasible; the acceptance of gays and lesbians within the Jewish community, including the ability to serve as rabbis or to be married within religious ceremonies; the right of women even to study Torah and participate in synagogue services by chanting from the Torah, let alone become rabbis; and, finally, deciding who counts as a Jew at all. The latter brings up the fact that Judaism is relentlessly matrilineal in its theory of religious descent, which raises some obvious problems in cultures in which intermarriage is more and more common. The Reform movement within the United States has stated that descent can come from a Jewish father instead, at least if the child is raised in a perceptibly “Jewish” manner with regard to inculcation into Judaism at least as defined by Reformed Judaism. As she notes, this view has been attacked by other branches of Judaism on the ground that it fatally dissolves the notion of a single “Jewish people” inasmuch as there are now distinctly disparate views as to how one gains membership within the community. (One might compare this to concerns expressed by Chief Justice Taney in Dred Scott about the importance of maintaining “exclusive” control over naturalization in Congress rather than allow individual states to accept immigrants not only as citizens of that particular state, but also, and more importantly, as “citizens of the United States.”) Perhaps it simply illustrates my own alienation from many of those—particularly the Orthodox—who claim a privileged voice in defining the “community” that my own sympathies are far more with the Reformed movement than its critics, even if this does lead to an every more fragmented “Jewish community.”

Examples of legal problems that take on special meaning given developments in modern culture are, of course, endless. And one doesn’t have to await “modernity” in order to study the interplay of religious texts and the demands of the surrounding culture. Think only of the problem of charging interest on loans, prohibited by both Judaism and Islam (at least with regard to loans to co-religionists)—or the demand that debts be forgiven in “Jubilee years” that occur every half-century. One of the first things one learns about with regard to the deftness of rabbis in engaging in what Mark Tushnet and others would today call “workarounds” regarding halachic precepts is the creation of the prosbul by Rabbi Hillel, which in effect allowed the practical negation of the Jubilee Year precept. Similarly, one of the lessons I learned early on at the Hartman Institute was the way that rabbis in effect “neutralized” the Biblical authority to discipline “rebellious sons” by execution. Indeed, capital punishment itself was negated, in part by what someone like Justice Scalia would no doubt regard as onerous evidentiary rules that in effect precluded conviction in capital crimes, even though the Talmud contains ridiculously detailed discussion of different forms of capital punishment, including stoning and burning, and appropriate occasions for their infliction.

Still, whatever my self-identity as a Jew, I look at the halachic system from the perspective of the outsider, even if the fact that I am interested in at all can no doubt be traced to my particular autobiography. Perhaps it is relevant that I do not affirmatively believe in God, though I am well aware of a strong tradition with Judaism that emphasizes orthopraxis, i.e., the willingness to adhere to the demands of Halacha, rather than any kind of theological orthodoxy. From this perspective, who cares if one actually believes in God so long as one lays tefillin every morning or observes Shabbat (neither one of which I in fact do, however)? Even if I define myself as an agnostic rather than an atheist, that may be only a sign of my own intellectual lack of courage.

It therefore is the case that I cannot ascribe any Divine aspect to whatever is set out in halacha, nor do I feel “obliged” to follow any of the halachic precepts. Consider, for example Deuteronomy 17: 9-10: “And Moses and the priests the Levites spoke unto all Israel, saying: 'Keep silence, and hear, O Israel; this day thou art become a people unto the Lord thy God. 27:10 Thou shalt therefore hearken to the voice of the Lord thy God, and do His commandments and His statutes, which I command thee this day.'” In no way do I find myself called upon to “hearken” or otherwise obey the ostensible “commandments” set down. It is not that I violate each and every one of them. I have not murdered anyone, though not because I would otherwise have been tempted to do so in the absence of the Sixth Commandment. Perhaps it is more relevant that I do continue to refrain from eating certain foods, like pork or shellfish (though I gladly mix milk with non-kosher beef); again, this has nothing to do with a conscious desire to obey the halachic prohibitions. (I am, obviously, what has come to be called a “cafeteria Jew” in terms of picking and choosing among the laws of kashrut that I pay even minimal attention to.) If forced to offer an account of what friends often describe as basically irrational behavior, I talk about the powerful force of habit, going back to how I was raised as a child in a small North Carolina town, and the degree to which food customs are ways by which marginal communities especially create a sense of collective identity (and, for better or worse, become defined as “the Other”) by the wider community. One of the reasons I love living in Texas, for example, is that the barbecue, the national dish of Texas, is almost entirely beef, unlike North Carolina, where pork reigns.

In defining “the concept of law,” H.L.A. Hart paid great attention to the “internal” aspect of law, by which people do X because the law requires it and not, for example, because X is actually the right thing to do morally. The fact that I do not eat spareribs is consistent with halachic observance, but in fact has nothing to do with explaining why I refrain from spareribs but not from beef ribs. Perhaps I would have more difficulty explaining why I always participate in (one night of) a seder or that I cancel classes on (the first day) of Rosh Hashanah and Yom Kippur (and fast on the latter), especially given that I also feel increasingly uncomfortable with any liturgy that is suffused with acknowledgments of a divine sovereignty that almost literally makes no sense to me personally.

Kwall begins her last chapter by adverting to the title of her book: “The ‘myth of the cultural Jew’ is that one can adhere to Judaism on just a cultural level” without recognizing that he is simultaneously “embracing a degree of Jewish law and tradition regardless of whether they are aware of this reality or acknowledge it” (p. 281). Here is where she most clearly throws down her gauntlet to the Jewish readers of the book. They are (I am), she asserts, simply kidding themselves (or myself) if we deny that “reality” (and its ontological connection to a Divine presence?). Well, if all I have to do is to say that, there is some connection between my not eating pork (or fasting on Yom Kippur) and Jewish law—it’s like trace residues of arsenic in the drinking water—then sure, I’ll plead guilty. Fasting can clearly be traced back to Leviticus 16:29-34 and the historical fact that that injunction “took,” as it were, within the Jewish community in a way that the rigors of the Jubilee year year or the duty to discipline rebellious sons did not. But I don’t think she would find such a concession enough.

What is so striking about the book is Kwall’s own double consciousness. She wants to remind especially Orthodox Jewish readers of her book that they are deluding themselves if they believe that halacha is truly a closed legal system impervious to the influence of the surrounding culture. A noble cause, for which she deserves full support. But the awful truth is that almost none of the contemporary Orthodox leaders in the United States or, even more so, in Israel, are likely to read her book because a) she’s a woman, who b) teaches at a Catholic law school, and c) is clearly a political progressive with regard to such issues as gender. And the fact that her book is published by the Oxford University Press probably doesn’t help either!

So then we must confront the second aspect of her consciousness, which is someone deeply committed to the survival of the Jewish community as one organized around halacha, even if one recognizes, as one must, that one cannot possibly view it as a closed system divorced from its cultural surround. As already suggested, the likely readers, beyond those non-Jews interested in comparative law (or comparative “law and society”), are going to be people like me, self-identified but “secular” Jews who even if intellectually “interested” in Talmud or halacha, do not have what might be called the “Hartian” connection to it as a truly obligatory system. There are many fine things about this book, and I can gladly recommend it to anyone looking for an introduction to “Jewish law.” But with regard to what I suspect are the most deeply desired audiences and the impact she wishes to have on them, I suspect the book will prove unavailing. Either those most in need of the lessons she wishes to teach will simply refuse to read it or those readers who accept with alacrity her interconnection of halacha with culture will remain, both in their own lives and, perhaps more to the point, in passing down their notions of “Judaism” to their children, ever more distant from the kind of halacha-centered Judaism that she regards as truly essential to maintaining Judaism at all.

It is also worth noting that her arguments have implications for the status of Israel as a “Jewish state,” a notion that makes me decidedly uncomfortable, especially when it is adopted as a plank of American foreign policy. But if Israel is to be (some kind of) “Jewish state” then let it be the one described by Michael Walzer in his superb new book The Paradox of Liberation: Secular Revolutions and Religious Counterrevolutions (Yale 2015), i.e., a thoroughly secular state committed to truly equal rights for all, including, needless to say, its Arab citizens.

Secular Zionism has always been caught between two branches of more “religious” notions of Judaism. The first is quietistic, relying on God alone to decide when the Messiah intervenes in history and brings about the sacralized “Jewish state.” The other is distinctly unquiet, being composed of contemporary religious Zionists represented most importantly in the “settler” movements who view Eretz Israel as sacred land with their task being to begin the process of redemption, at any cost and come what may.

There is no reason to believe that Kwall supports either of these polar views (especially the latter, whose end point is settler Jewish terrorism that has now literally become front-page news). But one should recognize that the partisans of both views are highly skilled in citing halachic proof texts. One must decide, then, whether to try to “beat them at their own game,” by offering opposing proof texts, or instead rejecting the texts as utterly irrelevant. Why shouldn’t Israel be treated as just another state in the international system, composed sociologically of a majority that, in one way or another, defines themselves as “Jewish,” and assessed (or criticized) entirely on the basis of secular values?

I find it easy to agree with Walzer that perhaps the greatest tragedy of post-Independence Israel is that the Labor Zionists who founded the state and put into place what in many ways has been a vibrant democracy totally “fail[ed] to produce a strong and coherent secular culture to go with that democracy.” That failure, repeated in India, which Walzer also analyzes at length (along with Algeria), is precisely what gave space for the non-secular to use democratic procedures to come to power. But Kwall presumably believes that it is basically impossible “to produce a strong and coherent secular culture” that would still deserve to be called distinctly “Jewish.” That simply states the fundamental dilemma rather than necessarily provides a solution.

Posted 10:30 AM by Sandy Levinson [link]