an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Myth and Mystification in Religious and Secular Judaism
For the Symposium on Roberta Kwall, The Myth of the Cultural Jew
The central thesis of Roberta Kwall's book, The Myth of the Cultural Jew, which doubts whether it is possible to be a cultural Jew, reminds me of the old joke about whether one believes in infant baptism. The punchline is: "I not only believe in it, I've seen it done."
Kwall has also seen it done too. She knows plenty of self-described "cultural Jews," or "secular Jews," who are not observant but identify strongly as Jewish. Nevertheless, she wants to argue that their notion of Jewish culture derives ultimately from features of halakhah (Jewish law) and mesorah (Jewish tradition).
She makes this case in the final chapter of the book. But for the first 200 pages, she has written a very different book with a very different message. The title of this 200 page book might be "The Myth of the (Purely) Legal Conception of Jewish Law.” And what a fascinating book it is! Guiding us through centuries of Jewish legal development, she shows how generation after generation of Jewish sages, scholars, and commentators have been affected by the cultures in which they lived, incorporating ideas and values from non-Jewish cultures. Halakhah has never been a purely Jewish production; it has always incorporated and transformed features of the Gentile cultures in which Jews lived, thrived, or were oppressed. Turning to modern times, she shows how debates over homosexuality, the role of women, and Sabbath observance have been influenced by modern cultural values.
The goal of these first two hundred pages, however, is not to undermine Jewish faith through a hermeneutics of suspicion. That might be the project of committed secularists, but it is certainly not Kwall's goal. Quite the contrary, her purpose is to get Jews, especially religious Jews, to accept that Jewish law has always incorporated cultural influences from the entire world, and that this does not undermine the authenticity of the distinctiveness of Jewish law or the Jewish religion. Not surprisingly, she often has good things to say about (some parts of) the Conservative movement precisely because Conservatives have been most willing to admit that culture and historical contingency matter and should matter to the best interpretation of Jewish law. And throughout these pages there is a critique of various strands of Orthodox Judaism to the extent that Orthodoxy (1) denies this fact about how Jewish law develops; or (2) deliberately closes its eyes to changes in culture and society. Orthodoxy too often responds to social change through reaction formation or hunkering down-- which is just another way of being influenced by culture and history.
So far, so good. But Kwall also notices that the development of Jewish law-- including among today's Orthodox--has usually worked through a double movement. First, it responds to the changing world around it, incorporating selected customs, ideas, and values. Second, it denies that it has been influenced or has changed its values, and claims that new results can be derived solely through halakhic exegesis. In other words, Jewish law has often developed through Jewish sages, scholars, and commentators (1) denying that they are being influenced by culture (even though they are); and (2) asserting that they are merely engaging in the traditional work of "applying the law."
Reading these passages in the book reminded me of the confirmation hearings of Justice Sonia Sotomayor, in which conservative Senators repeatedly demanded that Sotomayor recite the catechism that she would follow the law and not be influenced by outside considerations, much less the values of a changing society or dreaded considerations of "empathy."
Kwall tends to view denials of cultural influence in the development of Jewish law as bad faith (pardon the pun) in the Sartrean sense. But from a sociological or cultural perspective, we could also understand them as central to the actual processes of evolution. The act of denial of outside influence is as important to the viability of the enterprise of change as the outside influence itself. The assertion that everything is done through legal exegesis helps to shore up the authority of a process of legal evolution that is not grounded ultimately on legal exegesis alone.
Kwall prefers a version of Judaism, whether Conservative or Orthodox, that is more honest about the inevitable interaction between law and culture, while at the same time never forsaking the importance of reasoning through the tools of Jewish law and the Jewish tradition. One must not, she insists, directly reason about what is good or bad, useful or not useful--which would jettison the tradition altogether. Rather, one must continue to use the tools of the tradition to make arguments and reach conclusions. In other words, one must commit one's self in advance to exploring whether using those traditional tools can get us to morally palatable results about sex equality and acceptance of homosexuality, to use two examples.
I admire and support her desire for greater intellectual honesty in the development of Jewish law. Yet, at the same time, one must also consider the possibility that religious belief only works *as* religious belief if it engages in this double movement of subterranean acceptance and overt denial of cultural influence and change. This is obviously so with many parts of Orthodoxy; I would argue that it is also true of certain features of Conservative-- and even Reform-- Judaism as well.
Indeed, I would suggest that even Kwall herself has to engage in a certain form of this double movement. She must both accept and deny that culture--in this case, a more egalitarian culture--is doing most of the work in the reforms she would like to see. She wants us to use the tools and texts of the tradition in order to get to the correct result-- correct that is, from the perspective of a progressive feminist of the early twenty-first century.
Her treatment of the debate over women's ability to read from the Torah and lead services is a good example. It seems clear enough that she would like a much more egalitarian system than the Orthodox are willing to countenance, but she wants to get to that result by reinterpreting Talmudic materials which, even if ambiguous, are pretty clearly based in a patriarchal system of values. (In the relevant Talmudic text, women might not be permitted to read from the Torah because it would offend the "dignity" of the congregation. Thus, one might argue that in our day, women’s participation is no longer offensive, and indeed, that the argument from "dignity" goes in the opposite direction-- toward acceptance of women's equal right to participate. Yet the rabbis of the Talmud never contemplate for one second that allowing *men* to read from the Torah might offend the dignity of the congregation. As the text shows, for them the baseline of normalcy and propriety is male.)
Kwall's use of these traditional materials seems to be very similar to what Duncan Kennedy has called "work" on legal materials-- that is, coming up with imaginative legal theories to push the texts that one must work with in the direction of the result one would like to achieve. But overtly stating that one is doing this might tend to delegitimate a religious enterprise of articulating an enduring divine law. Therefore a double movement is necessary-- one must always assert that one gets to the result through developing the "law"-- in this case, through the use of the traditional materials of halakhah and mesorah. The result, according to the official story, is a decision of law made by law and through law.
Acknowledging this double movement of subterranean acceptance and overt denial is just as central to what Kwall calls a "cultural analysis" as the ultimate fact of cultural influence. In some cases, cultural influence on law only works if its operations are partly obscured or mystified, especially if the law in question is the divine law of Heaven given to Moses on Mount Sinai. A cultural analysis of Jewish law, therefore, would have to accept this dual movement of denial and mystification as *part* of the process of development rather than as exceptional or unfaithful to the process.
Sometimes, however, Kwall uses the term "cutural analysis" quite differently: she uses it not to mean descriptive or interpretive sociolgical analysis, but as a normative justification for how a religious tradition *should* develop and how Jewish law *should* be interpreted. Sometimes she says that a cultural analysis shows that a certain degree of self-conscious acceptance of cultural influence or incorporation of cultural values is required as a normative matter.
This, I think, is a non-sequitur. A cultural analysis does not tell Judaism--or any other tradition for that matter--how it has to evolve or has to reason. A cultural analysis shows only how culture and law interpenetrate and mutually influence each other, not that there is a right way and a wrong way for this to happen. There are any number of ways that the mutual influence between law and culture might occur, and has occurred, throughout history. And if, in the case of Judaism, or any other religion, the mutual influence operates through a certain systematic denial or mystification, then this is what the cultural analysis reveals. We might wish for a better, more self-conscious form of evolution, but that preferred alternative is neither required nor demanded by the cultural analysis itself.
All of which brings me to the last part of Kwall's book-- in which she informs secular/cultural Jews that they are not so secular or cultural after all, and that their culture actually owes a significant debt to halakhah and mesorah, law and tradition. In response one might make the very same points I have just made about how Orthodoxy works.
It may be that, just like the Orthodox Jew, the cultural or secular Jew is engaged in a certain form of denial or mystification. For example, perhaps Kwall is correct that secular Jews in the United States tend to be politically liberal because they have inherited certain features of Jewish law that have been reconfigured through the social transformations of the Enlightenment and modernity. As a result, their political beliefs about social justice have their roots in halakhah. Their politics and values are genealogically traceable to halakhah.
Yet it is not at all clear what follows from this valuable insight.
First, it may be that denial and mystification is just how secularism operates *as* secularism. Perhaps secularism requires of you that you deny that your current beliefs have a genealogy of religious dogmatics because you want to reason with other people in society who don't share those particular religious beliefs and you want to participate and be accepted as a member of a secular society. (John Rawls, call your answering service!) And yet, under the surface of a seemingly secular public reason, the old religious dogmas and themes are still bubbling and agitating. I would not be at all surprised if this were so, not only for secular Jews, but also for secular Christians. It is just a mirror image of how Orthodoxy maintains its self-image as Orthodoxy.
Second, even if this genealogy is correct, it does not tell secular or cultural Jews what they should do once their eyes have been opened and they now see the truth. It does not demonstrate that they should self-consciously adopt more Jewish rituals or customs. All it does is suggest that their secularism has religious roots and can be explained genealogically as part of a historical or evolutionary process. Kwall's argument for why secular or cultural Jews should become more ritually observant or halakhically oriented is not based on what cultural analysis requires-- rather, it is based on her view of what, to use a familiar phrase, is "good for the Jews." Posted
by JB [link]