Creativity and cultural influence in early Jewish law.

• Author: Kwall, Roberta Rosenthal
• Position: Symposium: Creativity and the Law

INTRODUCTION

Jewish law maintains that man is obliged to create and to renew the cosmos with his creative enterprise. According to Rabbi Joseph Soloveitchik, a leading modern authority on Jewish law, "[t]he peak of religious ethical perfection to which Judaism aspires is man as creator." (1) Soloveitchik claims that the Torah chose to relate to man "the tale of creation" so that man could derive the law that humans are obligated to create. (2) The Jewish religion introduced to the world that the "most fundamental principle of all is that man must create himself." (3) According to Jewish law, man was not intended to be a passive recipient of the Torah, but rather "a partner with the Almighty in the act of creation." (4) Significantly, "[t] he power of creative interpretation is the very foundation of the received tradition." (5)

Human creativity thus lies at the heart of Judaism, both from a theological and a legal standpoint. Therefore, there are many secular scholars who are interested in the creative process from a secular standpoint as it relates to the Jewish tradition. On the secular side, legal scholars currently are turning their attention to analyzing law within cultural terms because political "culture" struggles are being waged increasingly on legal turf. (6) This pairing of law and culture requires clear articulations of what culture means and what the relationship between law and culture should look like. Scholars who examine law through a cultural analysis paradigm emphasize that it is important to focus on culture to "locate the ways in which law influences who we are and who we aspire to be." (7) This approach enables us to transcend the standard inquiries of what the law is, and what we want it to be, by asking instead what the law makes us. (8)

Among those scholars who invoke cultural analysis, there is a general sense that law and culture should not be viewed as two distinct entities but rather as embodiments of one another. When law is seen as culture and culture as law, it becomes logical to discuss how to interpret law in cultural terms. The view of culture I adopt in this Article is a fluid one popular in legal academic circles. According to this view, culture embodies heterogeneous, intersecting practices and processes emerging from within and beyond its borders. (9) This is in contrast to the more classic view that sees culture as a self-contained entity composed of coherent patterns. (10)

Jewish religious law, known as halakhah, has been influenced by cultural developments both within the Jewish community and outside of it. Cultural analysis reminds us that cultures are not hermetically sealed but continuously interact with the world around them. This reality is especially true with respect to Jewish law given that the history of the Jewish people is such that they have been living in foreign cultures in the Diaspora for thousands of years. This Article illustrates how these cultures, generally and particularly with respect to Hellenism, have exerted an enormous influence on the development and application of Jewish law in its formative period. (11) It adopts a cultural analysis perspective, thus positing that Jewish culture and Jewish law are inextricably intertwined. Further, it argues that from an early stage in the development of Jewish law, its inherent creativity derives from its confrontation with outside cultural influences.

Part I of this Article examines the analytical relationship between law and cultural analysis, and establishes the important symbiotic relationship between law and culture. Part II initially explores the fundamental tenets of the Jewish legal system in the law's formative years. It then investigates the influence of the surrounding cultures, particularly Hellenism, on the development of early Jewish law. Throughout this Part, the Article develops the argument that the need for adaptation to the surrounding environment ensured the inherent creativity of Jewish law's development and application. Part III contrasts the situation involving American Jewry in the twenty-first century with earlier times. It posits that the familiar and successful pattern of acculturation that historically insured a creative Jewish legal system is no longer viable in the sociological milieu in which most American Jews live.

1. THE EMERGING Focus ON LAW AND CULTURAL ANALYSIS

   As the twenty-first century moves forward, the focus on culture as an analytical construct seems to intensify. In general terms, cultural analysis emphasizes "the analysis of beliefs and values." (12) Its starting point is that human beings are creative and continually seek to make and remake their world, and thus emphasizes people's participation in the processes of cultural production. (13)

   The cultural analysis paradigm necessitates an emerging definition of culture, a concept that is markedly contested in our time. As Amherst professor Austin Sarat fittingly observed, "[t]o talk about culture is ... to venture into a field where there are almost as many definitions of the term as there are discussions of it." (14) Today, cultural studies scholars view culture as heterogeneous, with the practices deriving from both within and outside of its borders. (15) According to this perspective, culture is fluid and characterized by a sense of sharing among those with a common cultural framework as well as contested from within. (16) As a dynamic entity, culture manifests continual evolution as a result of a variety of internal and external influences.

   Cultural analysis initially emerged in disciplines such as anthropology and literary studies. (17) The connection between culture and law has been the focus of scholarly discussion only fairly recently. A cultural analysis approach to law asks "how to talk about and interpret law in cultural terms." (18) According to Austin Sarat and Jonathan Simon, cultural analysis has traditionally been "associated with 'softer' research traditions like feminist jurisprudence and other critical legal studies, but the 'harder' traditions like economics" are beginning to grapple with cultural implications." (19) By the last third of the twentieth century, many legal scholars began paying attention to the "imaginative life of the law and the way law lives in our imagination." (20)

   A key characteristic of the relationship between law and culture is the interrelationship between these two areas. A cultural analysis perspective sees law as reflecting culture as well as creating culture. Naomi Mezey contrasts this approach with the more typical vision of law which understands culture "as the unavoidable social context of an otherwise legal question." (21) According to a cultural analysis framework, the law is "constitutive," meaning that law both constitutes culture and is constituted by cultural norms. (22) When law is seen through a cultural analysis paradigm, law is understood as both a product of, and catalyst for, cultural production rather than as a neutral, objective system. Significantly, cultural analysis sees law as lacking an autonomous quality. (23) Robert Cover recognized this relationship between law and culture when he observed that "the creation of legal meaning ... takes place always through an essentially cultural medium." (24)

   The foregoing discussion underscores that the implementation of the law always occurs in culturally specific contexts. As the next Part shows, this dynamic has been present in Jewish law from its inception.

2. THE IMPACT OF SURROUNDING CULTURES ON THE DEVELOPMENT OF EARLY JEWISH LAW

   The essence of Jewish law is similar to any type of cultural property in that it has been developed and adapted by humans throughout the ages. Although Jewish law differs from secular legal systems in that God is viewed as the ultimate Author of the laws, in practice the operation of Jewish lawmaking historically has incorporated a pronounced human element, which necessarily entails both subjectivity and fluidity of interpretation. Jewish law embodies a humanly developed tradition of interpretation that has been evolving over centuries and in diverse locales. Significantly, Jewish law is a cultural product of creative human activity that represents the product of human judgment about God's will. The undeniable human component of Jewish law is of vital importance in applying the cultural analysis paradigm to Jewish law.

   Social historian Jacob Katz has noted that Jewish law "conceived of the Jewish community as not only a religious congregation but as a people with a distinct ancestry, a documented history, and a well-defined destiny." (25) Further, he states that this perspective can be found in the earliest of Jewish law sources, which "revealed the Jews as a people, or at least a community, constituted by common descent and attachment to a cultural heritage." (26) This observation underscores the interrelationship between Jewish law and Jewish culture. In addition, the incorporation of the influences from the surrounding cultures played a significant role in shaping the worldview of the Jewish people from the outset. This Part explores the nature of some of these early influences.

   1. The Written and Oral Law

      Before discussing more specifically the nature of extraneous influences on the development of Jewish law, a few words about the development of Jewish law and the source of its authority are in order. Significantly, Jewish law maintains a framework that reveals a dualistic source of authority. Initially, Jewish law is rooted in the concept of Divine Revelation, and this component of its framework embodies a vertical model with the operative power relationship existing between God and the Jews. The core doctrine of Jewish law under the vertical model is Revelation by God of His will to the Jewish people at Mount Sinai. Jewish tradition maintains that through this Revelation, the Divine presence permeated the earth with instructions, laws, and commands...