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
For the Symposium on Roberta Kwall, The Myth of the Cultural Jew
Roberta Rosenthal Kwall’s new book, The Myth of the Cultural Jew, brings a cultural analysis framework to bear on Jewish law, tradition, community, and identity. It carefully examines the complicated dialogic relationship between halakhah (Jewish law) and mesorah (Jewish tradition) on the one hand, and cultural forces internal and external to the Jewish community on the other. Reading it, I felt as though it had been written especially for me.
Cultural legal analysis resonates closely with my own law-and-society commitments, and reflection on the complex issues facing contemporary religious Jewish communities—particularly those related to sexual orientation and gender egalitarianism—consumes much of my own brain-space. The Myth of the Cultural Jew brought structure, rigor, and clarity to my half-baked intuitions and musings about how different Jewish communities have responded to the challenges of modernity, in equal measure reinforcing and challenging my own instincts. I have quibbles here and there with Kwall’s analysis of certain halakhic issues, but that’s really all they are. This book was a unique and welcome opportunity to bring together my academic interests and personal preoccupations.
Still, I can’t help but question Kwall’s framing narrative, which I found to be an uneasy fit with the careful analytical approach that so resonated with me. The book begins and ends as a repudiation of the myth of the Cultural Jew: one who identifies with culturally Jewish practices without acknowledging their origins in halakhah and mesorah. The term “myth” here means a “a widely held misconception.” (OED.) Does such a myth exist? If it does, Kwall does a convincing job of dismantling it. But she makes no effort to substantiate its pervasiveness, and I have not encountered it in the wild. Certainly, there are self-identified Cultural Jews for whom the origins of their cultural practices are irrelevant. They may be uneducated about, unaware of, or uninterested in the deep connections between many common culturally Jewish practices and their roots in Jewish religious texts and practices. But even those who deny that halakhah and mesorah has shaped their identity as Cultural Jews could surely be convinced without much difficulty that there is at least an historical connection between the two. So what is the myth?
Kwall’s deeper argument seems to be that Cultural Jews must take the origins of their practices and identities seriously, even if they reject the underlying religious claims to divinity or obligation. Under this reading, the myth is not that there is no relationship between the cultural practices and their religious origins. Rather, it is that one can live a rich and meaningful life of Cultural Judaism without exploring that relationship. If this is what she intends, Kwall is almost certainly correct that many Cultural Jews would find their practices deepened and enriched through such sophisticated engagement. But why is she so insistent that it is necessary to engage in this manner? What is so dangerous about what she apparently sees as a shallower Cultural Judaism? Undoubtedly, Kwall herself would be unsatisfied with such a practice; but is that reason enough to make demands on others? Perhaps they find sufficient meaning in their practices already; perhaps they find meaning elsewhere; perhaps they are not bothered by the prospect that their children may not mimic their practices when they grow up; or perhaps the engagement Kwall calls for on their part is simply not worth the investment it demands. In short, I am just not sure what the myth of the Cultural Jew is or why it so urgently requires debunking.
There is, though, a different myth that Kwall gestures toward, but that she never quite confronts explicitly. We might call this the myth of the Authentic Religious Jew: one who practices an historically faithful Judaism that has remained untouched by cultural forces. This myth is pervasive within the more insular Orthodox Jewish communities here in America, and especially in Israel. In my view, it is false and dangerous, and it warrants dismantling.
Contemporary Orthodox communities of the highly insular variety, hasidic and yeshivish alike, often style themselves as practitioners and guardians of an ancient and authentic religious lifestyle. Such claims, endemic to fundamentalist movements everywhere, are generally false, and they are false here. Judaism was never static, and these communities were created and continue to be shaped through dialectical engagement with the cultural forces around them. A woefully partial list of internal and external cultural developments that contributed to this process includes the traumatic demise of the messianic Sabbatean movement, the emancipation of Jews from the European ghettos, the end of State-backed coercive rabbinic authority, the haskallah (Jewish Enlightenment) movement, the rise of the nation-state, pogroms,the advent of political Zionism, the emergence of Reform and Conservative Judaism, the Holocaust and its aftermath, the birth of the State of Israel, the explosive growth of American Jewry, the kiruv (religious Jewish outreach) movement, the sexual revolution, feminism, the internet, and the gay rights project. In some cases these communities have responded to these challenges with unacknowledged adaptations. In others they have often done so by increasing their insularity and further rejecting what they call the outside world.
That these self-styled traditionalist communities have been shaped through a dialogic relationship with cultural forces is neither surprising nor inherently troubling. The cultural analysis employed by Kwall correctly assumes that everycommunity, movement, and identity is in constant discourse with the cultural forces around it, and that this process is what creates identity. This is true no less of those claiming to preserve tradition than it is of those who consciously innovate within tradition or reject it altogether.
The trouble, though, lies in these communities’ claims to exclusive authenticity and their refusal to acknowledge their dynamic and synthetic qualities. This is dangerous in the many ways that all fundamentalism is dangerous. It undermines and delegitimizes other communities’ responses to the same challenges. It diminishes the space for the creative, yet still authentic, adaptation that Kwall pines for. In Israel, these communities and their leadership enjoy immense political, legal, economic, and social power. They control personal status issues like marriage, divorce, conversion, citizenship rights and more, and other groups pay the price. Further, in both Israel and the United States, by insulating themselves from and demonizing the outside world—sometimes denying their children meaningful educational opportunities, never mind acculturating them to basic social norms—they prevent those who may be unsatisfied with or downright tormented by their communities’ practices and ideologies from exiting. This is by design, of course; but it is profoundly at odds with modern liberal philosophy around which our broader society is organized. To be clear, I have no answer for how to balance parental rights, children’s rights, egalitarianism, religious freedom, liberty interests, and individual choice in the United States, much less in Israel. But I have an intuition that it starts with challenging the pervasive myth of the Authentic Religious Jew.
That this is not Kwall’s project is of course her choice. I am mindful that a work must be engaged on its own terms ratherthan on those the reader might have preferred. However, all of the materials necessary to challenge this very real, very pernicious myth are already in the book. Indeed, one of its great strengths—and one of the reasons I am grateful for the book, which I have enthusiastically recommended to friends in my Modern Orthodox Jewish community—is that there is so much in it that the attentive reader can readily reassemble its parts to challenge the myth of the Authentic Religious Jew. Still, I wonder: why did Kwall choose to frame the book as she did, attacking the lesser and less dangerous myth?
Hillel Y. Levin is Associate Professor at the University of Georgia School of Law. You can reach him by e-mail at hlevin at uga.edu