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.
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
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).
[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.”).