Monday, August 17, 2015

Jewish Identity Without Law or G-d

Guest Blogger

Alan Brownstein

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

Professor Kwall pursues several goals in her enlightening, informative, provocative and frustrating book. One objective is to demonstrate that there is a human element to Jewish law. Both internal Jewish culture and the foreign cultures in which Jews were embedded for much of our history significantly influenced the changing substance of Jewish law. This is Kwall’s strongest thesis and it is expertly developed. A second goal is to demonstrate the utility of cultural analysis in understanding Jewish law and culture.  I leave that discussion to others.

                The third goal addresses the question of whether Jewish particularity can survive if Jews define themselves solely in cultural terms. If “cultural” Jews reject both the Jewish religion and Jewish law, is there anything left that defines them distinctively as Jews that will persevere and continue over time? Kwall’s answer to this question is “No” and she fears what such an adaptation of Jewish identity would mean for the future of the Jewish people, particularly in the United States. Notwithstanding the title, this is the least developed discussion in her book.

I share Professor Kwall’s concerns about the longevity of Jewish tradition if it is anchored to nothing more than a sense of cultural identity. I am a practicing Reform Jew. To me, being Jewish involves participation in Jewish worship, knowledge of Jewish history and tradition, affiliation with Jewish institutions, particularly a synagogue, and a poorly rationalized, ad hoc relationship with Jewish law. Cultural Jews would describe what it means to them to be Jewish very differently. I worry that the conception of Jewish culture on which they stand cannot justify bearing the costs of being perpetual Jewish strangers wherever they live.

It is precisely because of these shared sensibilities that I found Kwall’s book to be so frustrating. I wanted her book to discuss this third issue in much more depth than it does.

Professor Kwall’s message to cultural Jews is that if they care about maintaining the particularity of Jewish identity and tradition, they have to connect more closely than they do to Jewish law. Jewish culture divorced from Jewish law cannot persevere. Indeed, it makes little sense to act as if Jewish culture can exist in any meaningful sense that is separate from its Jewish law roots.

Why should cultural Jews be persuaded by this argument? One answer is grounded in the principles of cultural analysis. Law and culture are integrated. Neither can really be understood in isolation from the other.  This abstract conclusion, however, doesn’t persuasively explain why it is impossible to have an enduring Jewish identity unsupported by religious law.  Why is law an essential condition for cultural continuity?

Part of the problem here relates to what exactly Professor Kwall means by Jewish law. Sometimes she describes Jewish law so expansively it seems to encompass the entire megillah of Jewish tradition, customs, and history. In this broad sense, Jewish culture is unavoidably intertwined with Jewish law. This seems almost self-evident and I doubt many cultural Jews would dispute this contention. But I also doubt they would think her argument is inconsistent with their understanding of their Jewish identity. They acknowledge connecting with some Jewish customs and traditions as distinctive aspects of Jewish culture. What they reject is the idea that these customs and traditions must be obeyed because they are divine commandments. If by cultural Jews, we mean secular Jews, and that is how the term is typically used, the problem is not only that they doubt that these commandments are an accurate description of G-d’s laws. Cultural, as opposed to religious, Jews, do not believe in G-d.

Defining Jewish law more narrowly does not mitigate this problem. Kwall explains that historically, Jewish law as law is what distinguished Jews from non-Jews. Many Jewish customs, traditions, and ethical values may not constitute divine obligations. However, their ultimate source is Jewish law, the halakhah. Thus, Jewish law is part of the DNA of the cultural Jew, whether they know it or not.  But how does this attenuated historical analysis demonstrate that culture alone cannot support Jewish identity. A tradition may have independent value or provide a feeling of distinctive communal membership regardless of its source. To the cultural Jew, a tradition’s virtues over time are irrelevant to its origin in Jewish law. Many atheists may concede that religion was the source of ethical principles they endorse today from a humanist perspective. That recognition does not persuade them to connect with the religious roots of their ethics.

Professor Kwall says very little in her book about G-d.  I found this surprising. I think the primary reason that cultural Jews see no reason to obey Jewish law or even to respond to its requirements is that they deny its legitimacy. If G-d does not exist, what justifies conferring law making authority on religious leaders or compels adherence to religious law? Exactly how are cultural Jews to authentically connect with Jewish law, as Kwall urges them to do, when they reject an essential premise on which the law is based?

Professor Kwall's impressive demonstration that there is a human element to Jewish law does not resolve this problem. Law is obligatory. There has to be a reason for people to obey what purports to be law. Jews who believe that Jewish law reflects the best attempts of mortals to understand and communicate G-d's commands have a sufficient reason to obey such laws -- even if the laws do not represent the literal expression of G-d's will and, accordingly, may be mistaken in their requirements. Without this acknowledgement of Devine inspiration, however, it is difficult to understand what gives Jewish law obligatory power. Jewish law was not followed because of its functional utility or a democratic consensus endorsing it as the will of the people. It commanded allegiance either as G-d's will or as human mediation of G-d's will. If cultural Jews do not believe that Jewish law reflects the Devine in any meaningful way, it is hard to understand how they can expected to adhere to such laws or to justify their conduct by reference to them.

Even for religious Jews, there remains the question of whether Jewish identity can be grounded on ethics and worship without an accompanying commitment to obeying traditional Jewish law. Some Jews today engage in traditional worship services (or more unconventional modes of worship) for relational rather than legal reasons. They value Jewish moral conscience rather than legal obligations. These are not cultural Jews. Yet they can be asked a question roughly similar to the admonition Professor Kwall directed at cultural Jews. Can Jewish worship and ethics can be separated from Jewish law, and, if that is possible, will it provide a strong enough foundation for the continuation of a distinctive Jewish identity?  And if it will not, can the requirements of Jewish continuity instill a renewed connection to laws that no longer resonate in the minds and hearts of many Jews.

Alan Brownstein is Professor of Law, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality. You can reach him by e-mail at aebrownstein at

Older Posts
Newer Posts