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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Seven Jews—Twenty-One Opinions!!: A Response To My Colleagues
For the Symposium on Roberta Kwall, The Myth of the Cultural Jew
There is an old joke that many readers of Balkinization probably have heard: “Two Jews—three opinions.”This joke provided the inspiration for the title of my response and underscores my recognition of the depth and richness of the seven essays appearing in this symposium.In crafting this response, I am mindful that brevity is important and so there are many areas that I will not be able to address fully or even partially. One area that was the subject of significant discussion that I will not address in detail is the title of the book, to which I gave significant thought during the eight plus years I worked on this project.Although I was fascinated by the numerous comments on the title, in the end I think I made the right choice.And perhaps the participants will prefer the title of this response!
To begin, I was most gratified that none of the participants seemed to have had issues with my presentation of the history of Jewish law or even my halakhic (Jewish law) analyses. I do not take this lightly because a primary goal of this book was to enable readers from a wide variety of backgrounds, religions, and perspectives to understand the origins and development of Jewish law.I can attest to the reality that even Jews from somewhat traditional backgrounds often do not understand exactly what Jewish law is—specifically, a largely humanly developed system of rules, customs, traditions that governs virtually every aspect of human behavior.During the six years I co-directed DePaul’s Center for Jewish Law and Judaic Studies, the question “what exactly is Jewish law?” probably was the most common one I received (from both Jews and non-Jews).
My book’s focus on the interconnection between Jewish law and culture (both Jewish culture and the cultures of the lands in which Jews have lived for centuries) is itself an insight that is largely undeveloped within the world of Jewish Studies.I know this from the many conversations I have had with religious leaders across the spectrum of the Jewish community and from my own knowledge of the literature in the area of Jewish Studies.I gained this knowledge of the Jewish Studies literature both informally through my research for this book, but also through my seven years of coursework toward my Master’s Degree. For this reason, I can say with a fair degree of certainty that the law/culture paradigm that I develop and apply to halakhah in The Myth of the Cultural Jew is not one that that has been explicitly mined in the discourse in the world of Jewish academia.
In addition, my conversations with Jews from all backgrounds as I was writing this book provided me with a huge real-world benefit.All too often Jews speak primarily to people from their own movement or background, especially on a social level.For many reasons, I am fortunate to be in a position to interact with a wide variety of Jews on a constant basis, socially, professionally, and specifically in my study of Judaism. My deep conversations with people representing the widest possible spectrum of Judaism provided tremendous inspiration for me on a daily basis as I wrote this book. I will be drawing on these conversations, as well as my academic knowledge of Jewish law and culture, in responding to some of the points of disagreement raised in the essays.
I want to say a few words about my own religious views, primarily to provide a context for the methodological approach I adopted in writing this book. Jack Balkin is correct in that the Conservative movement adopts a theoretical framework that is closest to my own. About nine years ago, when I was just beginning this project, I had a telephone conversation with Rabbi Elliot Dorff, who is now the Chair of the Conservative Movement’s Committee on Jewish Law and Standards.I well remember his delighted reaction to my planned project —in fact, it was during that conversation that he mentioned to me his observation that halakhah is essentially part of the DNA of the Jewish people. Although my personal practices veer more toward Modern Orthodoxy, I think like a Conservative Jew from a theological and ideological perspective (truthfully, I know many Orthodox Jews for whom this can also be said).And my thinking in this regard clearly facilitated my gravitation toward, and appreciation of, the relevance of the cultural analysis framework to the development of halakhah.
That said, a careful reading of my book reveals criticism and praise for all of the movements rather equally. It was important for me to write this book from an objective, scholarly perspective and based on many of the book’s reviews in other forums, I think I achieved that goal.The chapter on homosexuality is the prime example of this.My goal there was to illustrate that a cultural analysis methodology does not compel a particular conclusion even with respect to a hotly contested topic.Mark Graber’s assertion that I “praised Jewish denominations for interpreting Jewish law in ways that permit same-sex marriage,” was a misreading of this chapter.In contrast, the chapter on women and ritual was less objective in the sense that it clearly argued for a particular interpretation of halakhah.But even there, that interpretation was not about endorsing the Conservative movement’s position on women publicly reading from the Torah.Instead, that chapter was written from the perspective of examining halahkah in its entirety and emphasizing certain strands of the discourse that have not received adequate attention in Orthodox circles, largely due to cultural considerations. This chapter also is very much an illustration of how cultural analysis applies to Jewish lawmaking.
When I read the essays in this symposium, I noticed that several of the participants took issue with what they perceived to be the main conclusions drawn from my cultural analysis of halakhah.The main lessons of my analysis are presented in the final chapter.Briefly, from a theoretical perspective, cultural analysis explains why both the law and the cultural elements are part of the tradition and why they must remain so. It explains why even those Jews who claim to be purely cultural are still “doing more law” than they realize.It helps navigate the discussion of critical areas of Jewish discourse such as particularity versus cultural fluidity; and pluralism versus authenticity.
With respect to the topic of authenticity specifically, Hillel Levin may well be correct that my book contains all the elements necessary to write a different book, one challenging the stand regarding halakhic authenticity that he objects to in certain parts of the Orthodox Jewish community.Other Orthodox scholars such as Marc Shapiro have already begun that discourse (see his book, Changing the Immutable: How Orthodox Judaism Rewrites its History) and not surprisingly, this view has long been a focus of scholars from a Conservative Jewish background. I leave to others a more comprehensive examination of this topic as it applies to Orthodox Judaism. But a significant part of my target audience is indeed those Orthodox scholars who are engaged in this enterprise, and I am thrilled by the reception it has received in these quarters (and needless to say, I am so pleased that Hillel is recommending the book to his Modern Orthodox community!).
As recognized by Sandy Levinson and others, I am concerned with transmission of the tradition, primarily among non-traditionally observant Jews, who constitute the majority of Jews (both here and in Israel).I am concerned with the transmission of a tradition I believe to be beautiful, beneficial and full of wisdom.I am concerned with the transmission of a tradition that has produced some of the most acclaimed philosophers, artists, entertainers, scientists, and even law professors! For all the reasons I discuss in my final chapter, a culturally nuanced perspective of halakhah is particularly helpful for thinking about transmission.
For a Jew to appreciate and want to perpetuate our tradition, it is not necessary that he or she see the law as “binding” or representing the direct word of God. For that matter, it also does not really matter whether one even believes in God, a point I make clear in the book’s last chapter. On a related note, I need to take issue with Alan Brownstein’s blanket assertion that cultural Jews do not believe in God. Many cultural Jews do believe in God but they do not necessarily buy into the rabbinic tradition’s definition of halakhah or even the notion of rabbinic authority. Many cultural Jews also share Alan’s “poorly rationalized, ad hoc relationship with Jewish law,” and one of the goals of my book was to challenge some of their assumptions, conscious or otherwise, on this point.As I pointed out in Part II of my recent exchange with journalist Shmuel Rosner in the Jewish Journal, http://bit.ly/1LSPi6P there is a wide variety in how Jews who self-denominate as “cultural” think and act. Returning to the matter of faith, it is also important to acknowledge that even some seemingly religious Jews are"agnostic" concerning their feelings about God, although they very much believe in the power of the halakhah as a way of living a good life (see Jay Lefkowitz’s 2014 article in Commentary entitled The Rise of Social Orthodoxy).
Cultural analysis is very relevant to understanding all of these realities because such an approach reaffirms a multiplicity of perspectives. Moreover, this appreciation for diversity has always been part of the Jewish tradition from its inception. I particularly thank Sherry Colb for her essay’s recognition of what the book was trying to accomplish when she wrote that “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.”
Even so, when it comes to the issue of what is being transmitted in some non-traditionally observant communities, there is reason for concern. For many American cultural Jews, a big problem is that they have lost the ability to distinguish between what is Jewish and what is American.Particularly in response to Mark Graber’s essay, I wish to point out that sociologists of the American Jewish community have documented the “confusion” caused by the merger of these two belief systems, and used the term “coalescence” to describe the phenomenon. As a result of coalescence, as well as the general trend toward the personalization of religion, the escalating rate of intermarriage, and the state of Jewish education in the United States, many believe the survival of the Jewish tradition among some liberal Jewish communities is in question. I appreciate Shari Motro’s perspective on growing up in Israel, and I acknowledge she knows Israeli culture far better than I do.Even so, I suspect that most observers would agree that in Israel, where the majority of Jews claim to be secular, it is far easier to create and maintain Jewish identity.Israeli Jews who are not highly educated from a Jewish standpoint still have a greater familiarity with Jewish texts, customs and traditions than most American Jews.Jewish culture is the majority culture in Israel and the country operates according to “Jewish time.” The situation is completely different when the majority culture is not based on Hebrew or Jewish roots, and the land on which the Jews live is not their historic homeland. These realities present tremendous challenges for Jewish educators and for lay leaders in the United States who are concerned with Jewish survival and peoplehood outside of Israel.
In my last chapter I attempt to open a discourse on this very point by detailing several specific ways in which a cultural analysis of Jewish law can inform the conversation about Jewish identity and Jewish survival.I appreciate Jack Balkin’s general point that this last chapter had a different feel from the others. In writing this book, I felt it was important to ground my theoretical analysis in a more concrete framework and my final chapter represents such an attempt. One part of this discussion calls attention to the need for an emerging “middle ground” which would include people who self-denominate as “liberal or even Modern Orthodox” as well as identified, cultural Jews (and those in between). These alliances, which are already beginning to occur, have tremendous potential to implement in practical terms the theoretical insights of the cultural analysis model I invoke.Another point I develop concerns the importance of focusing on Jewish narrative (aggadah), particularly in educating certain Jewish communities. For the reasons I discuss, the use of aggadah has tremendous potential to instill an appreciation for the particular wisdom of the Jewish tradition, and this potential is especially significant for less traditionally oriented Jews who are not especially attracted to halakhah. My analysis may not have convinced Sandy Levinson and others to do anything differently, although Sandy’s essay reveals that he actually is doing quite a lot of halakhah!Still, based on both the formal and informal responses to the book I have been receiving, I believe there are sufficient numbers of Jews who are actively contemplating my arguments and observations. I did not articulate my analysis and suggestions as complete solutions to the problems I discuss. Rather, as Shari Motro noted, I intended my analysis and my lessons as an invitation to others. And it is my hope that this invitation will continue to be accepted by others in the future.
And speaking of invitations, I want to conclude by thanking Sandy for organizing this symposium, Jack for sponsoring it, and all of the participants for spending part of their precious summer vacations reading my book and penning their responses.I am deeply grateful that you thought my efforts were worth your time. And despite whatever differences of opinion surfaced during our discourse, I remain convinced that, just as is the case with Jews throughout the world, there is more that unites us than divides us.
Roberta Rosenthal Kwall is Raymond P. Niro Professor at DePaul University College of Law. You can reach her by e-mail at rkwall at depaul.edu