Balkinization: The Reality of Richly Textured Judaism: A Review of The Myth of the Cultural Jew, by Roberta Rosenthal Kwall

The Reality of Richly Textured Judaism: A Review of The Myth of the Cultural Jew, by Roberta Rosenthal Kwall

Guest Blogger

Sherry F. Colb

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

In The Myth of the Cultural Jew, Roberta Kwall, the Raymond P. Niro Professor of Law at DePaul University, has accomplished something quite extraordinary. Applying the lessons of cultural analysis to the question of what it means to be a Jew, Kwall demonstrates unequivocally and in a large number of contexts, that Jewish law—“Halakhah”—whether observed by the most devout “Haredim” (named for the Hebrew word for “trembling”) or the nominally Reform Jews who rarely observe commandments or attend synagogue services—is necessarily and profoundly shaped by the particular human beings who follow that law and who call themselves “Jews.” The content of Jewish law, then, takes in the proclamations of elites as well as the behavior of the masses of Jewish individuals who negotiate their lives embedded in a culture of Jews as well as the non-Jews who surround them. Because people dynamically construct Jewish law, the substance of Judaism and, accordingly, the meaning of “Jewishness” have differed over time and space. To claim that there is one and only one way to be a law-abiding Jew, in the light of the arguments that Kwall marshalls in her book, is to expose oneself as ignorant and in need of the deep enrichment and fascinating story told in The Myth of the Cultural Jew.

When a book has been so expertly crafted, it is difficult to know what to say in response, other than to express gratitude to the author. But while I do express that, I wish to dedicate some space in this review, first, to exploring how Kwall’s claims ring true to my own experience of living as a Jewish person who is not very observant, second, to drawing an analogy (or really, building on analogy that Kwall herself discusses) to the area of constitutional criminal procedure, and third, to quibbling a bit with what I regard as a perhaps secondary claim about the existence of purely cultural Jews.

My Own Life

I have written elsewhere [1] about my own identity as a Jew and the role it has played in my writing. I observe virtually no commandments, save for those incidentally implicated in virtue of my ethical veganism, which places me more or less in compliance with the year-round dietary prohibitions. I avoid both flesh and dairy as well as all other manner of animal products, and much of Jewish dietary law centers on which animals’ flesh may or may not be consumed and in what temporal or physical proximity to dairy secretions. Yet I have not simply ignored Jewish law in this regard.

I have, for example, offered my own interpretation of the Biblical prohibition that most observant Jews today construe as a mandate of separation between flesh and dairy,[2] a prohibition that I argue is best understood as an injunction against disrupting the intimate bond between a mother animal and her baby, one that ultimately points the way to veganism.[3] I have thus engaged with Jewish law and brought my ethical and cultural commitment to non-violence towards animals to bear directly on that engagement. Kwall’s cultural analysis approach serves to validate and illuminate that project.

When my older daughter turned thirteen but did not want what would be recognizable as a Bat Mitzvah, my husband organized a beautiful vegan celebration (that was therefore suitable for people observing conventional Kosher rules) that he dubbed a “Not Mitzvah.” The days before the event included a visit to the United States Holocaust Memorial Museum in Washington, D.C., and the ceremony itself involved both a speech in which my daughter spoke of her grandfather’s (my father’s) heroism in rescuing Jews during the Holocaust and of her own commitment to sparing animals’ lives through veganism, followed by a rendition on her saxophone of a haunting Yiddish melody called Oyfn Pripetchik, the words of which tell of a rabbi teaching little children the Hebrew and Jewish alphabet, “Dem alef-beys,” through which they could learn the Torah (the Jewish written law). Jewish law and culture seamlessly informed our “Not Mitzvah” and made it as special as it was.

Constitutional Criminal Procedure

In her book, Kwall discusses the American constitutional case of Dickerson v. United States.[4] In Dickerson, the United States Supreme Court considered the validity of a congressional statute providing that police who place a suspect in custody are not obligated to provide the now-famous “Miranda warnings.” What made this case difficult was that the Supreme Court had said repeatedly in the years that followed its decision in Miranda v. Arizona [5] (requiring the warnings) that its protections were not required by the Constitution but represented a mere prophylactic measure. If so, it seemed to follow that Miranda was only common law (at best) that could be overruled by a clear statute, such as the one at issue in Dickerson. Yet the Supreme Court held that Miranda was a constitutional decision and that Congress therefore lacked the power to overrule it, notwithstanding the Court’s prior statements, along with numerous and continuing exceptions to Miranda that would appear to be unacceptable if Miranda were truly constitutionally compelled.

Kwall, citing Naomi Mezey,[6] significantly observes that the Supreme Court’s decision rested in part on the fact that the Miranda warnings have become a vital part of American culture and have accordingly acquired the status of “constitutional law” in that way, because Americans view them as such. I find this cultural analysis approach to Dickerson a very satisfying one. And I would add, in the same spirit, that much of what animates the content of the Fourth Amendment right of security against unreasonable searches derives quite directly from cultural practices among non-governmental, non-elite individuals, who may reasonably expect privacy when they talk on the telephone,[7] who would typically allow an objecting occupant’s “no, don’t come in” to take precedence over the welcoming co-occupant’s “yes, please do come in,”[8] and who implicitly license neighbors, peddlers, and solicitors to approach their front doors briefly but do not similarly license a visiting narcotics-trained dog to pace rapidly back and forth at their front doors for several moments.[9]

In all of these cases, the Supreme Court has determined the substance of the law largely from the cultural expectations and conduct of people who are not in charge of construing the Fourth Amendment and who are also not strictly invoking or necessarily complying with the local law of trespass. This is culture making its indelible impression on the law and shaping it dynamically over time. And it is not surprising (but surely edifying) to learn that this happens among those observing Jewish law in much the same way it happens for those subject to U.S. law.

Quibble About the Title

There is so much brilliance in this book, which takes on, among other complex areas, the various denominations of Judaism in the Diaspora, the role of Israel in Jewish identity, the religiosity (or secularism) of Israeli Jews, the place of feminism in Orthodox practice, and the challenges posed by same-sex relationships among the devout, given some of the language in Leviticus.[10] But I must quibble with a proposition that I think may not be an absolutely central claim of Kwall’s book, the proposition that the “cultural Jew” is a myth.

Kwall proves beyond any reasonable doubt that the “Halakhik” or “purely legal” Jew is a myth. Law—including Jewish law—cannot and does not exist in a complete vacuum, though many devout people may imagine that it can and does. That is a major achievement, one made possible by painstaking and thorough research and investigation. Furthermore, this proof has lessons for law more generally that go beyond its particular application to Judaism.

But I believe there can be a cultural Jew, one whose experience of himself as “Jewish” is completely divorced from Halakhah, from Jewish law. As Kwall herself notes, for example, one of the most important indices of connection to Judaism identified by American Jews is remembering the Holocaust.[11] Many people who consider themselves Jewish but observe no commandments (other than those that fully map onto contemporary post-Enlightenment norms) and show no interest in learning about Judaism per se feel Jewish in virtue of having been racially classified as such in the Twentieth Century by the Nazis. They are Jewish, in other words, as an ethnic identity that has formed in direct response to genocidal hatred and racialization.

I have a friend who knows that her grandparent was Jewish and that she therefore would have been vulnerable to the Final Solution had she lived in Europe at the relevant time. But that is it. That is her Jewishness.

Kwall, I suspect, would say that this Jewish identity is weak and shallow and will not survive into the future. And she might well be right about that. Perhaps, without any connection to Jewish law, Jewish culture becomes so impoverished that its preservation is unlikely. Kwall would undoubtedly view this state of affairs with alarm. She states, “if halakhah is what drives Jewish particularity, and if halakhah is figuratively embedded in the DNA of the Jewish people, then a failure to actively cultivate an appreciation of its role will inevitably lead to the extinction of the Jewish people.”[12] I understand this alarm. Having grown up as an Orthodox Jew, I myself recall some of my teachers explicitly telling me and my classmates that assimilation—the dilution and eventual elimination of Jewish identity—is tantamount to finishing the job that Hitler started.

But the fact that the purely cultural Jew may not be a robust creature whose children and grandchildren will remain recognizably Jewish does not make the purely cultural Jew an impossibility. Kwall states that “[m]any, if not the majority, of Jews consider themselves ‘culturally Jewish,’ without recognizing that such a label is an impossibility according to cultural analysis. The culture embraces the halakhah and vice versa. One cannot exist without the other.”[13] Further, Kwall argues, “given the inevitable intersection between law and culture, Jewish culture is meaningless absent its grounding in halakhah.”[14]

The fact that the purely cultural Jew may not be long for this world does not, however, make the purely cultural Jew an “impossibility” or a myth. And I would go even further with this quibble. I would say that a racialized Jewish identity—combined with a sense of humor that predictably accompanies a history of persecution—may be more robust and capable of self-replication and preservation than Kwall imagines.

Tribalism is a powerful force, and the mix of blood (in the form of racial identification), land (in the form of nationalism associated with having a state where Jews, broadly defined, are welcome), and the persecution itself from which Jews might be fleeing to that state (paradigmatically exemplified by the Holocaust) could conceivably keep the Jews “going” for a long time as an identifiable group with cultural norms bereft of what I would concede are the richness and beauty contained in the Halakhah.

I say this not as a normative critique of Kwall’s claims. As between tribalism and an enduring tie of some sort to the Halakhah, I would think the latter may well be a healthier and more positive foundation on which to build the future of Jewish identity. It is not, however, the only way, as the persistence of tribalism and racialized identity attest to around the world.

Perhaps I would thus have titled the book differently. “The Myth of the Purely Halakhic Jew,” “The Improbability of the Cultural Jew,” or “The Unconscious Halakhah that Permeates Most Self-Described Cultural Jews.” Kwall’s title is far more elegant, though, and I would, in any event, not focus too much attention on the title of what is a profoundly significant and scholarly contribution to our understanding of what it means to be a Jew.

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. You can reach her by e-mail at sfcolb at gmail.com

[1] See Sherry F. Colb, Decoding “Never Again” in People of the Book: Judaism’s Influence on American Legal Scholarship, 16 RUTGERS J. LAW & RELIGION (Symposium Spring 2015).

[2] “You shall not seethe a kid in his mother's milk.” Exodus 23:19 (King James Version).

[3] See Sherry f. Colb, Mind If I Order the Cheese Burger? And Other Questions People Ask Vegans 125-129 (2013).

[4] See Roberta Rosenthal Kwall, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition 9-10 (2015) (discussing Dickerson, 530 U.S. 428 (2000)).

[5] 384 U.S. 436 (1966).

[6] Kwall, supra note 4, at 9-10, citing Naomi Mezey, Law as Culture, 13 Yale J.L. & Human. 35, 43 (2001).

[7] See Katz v. United States, 389 U.S. 347 (1967).

[8] See Georgia v. Randolph, 547 U.S. 103 (2006).

[9] See Florida v. Jardines, 569 U.S. ___ (2013).

[10] See, e.g., Leviticus 18:22 (King James Version) (“Thou shalt not lie with mankind, as with womankind: it is abomination.”).

[11] Kwall, supra note 4, at 261 (“Among the nine areas identified by the [Pew] survey [on Jewish identity], remembering the Holocaust drew the largest number of affirmative responses, with nearly three-quarters of the NET Jewish population responding that such remembrance is essential to being Jewish.”).

[12] Kwall, supra note 4, at 284.

[13] Kwall, supra note 4, at 284.

[14] Kwall, supra note 4, at 285.

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