Law, religion, and culture intertwined: a case study in the development of American Jewish law.

• Author: Goldfeder, Mark

ABSTRACT

Law and religion share an underlying structure built on commandments and corresponding commitments. They also share a space in the formal regulation of a person's daily life. Oftentimes, they attempt to legislate in the same specific areas, and oftentimes they come to different final conclusions, or to similar conclusions, but for very different reasons. This article explores the concept of child support in Jewish and American law, respectively, noting how the standards that Jewish law courts impose are actually governed by the hybrid and sometimes competing claims of religious law, secular law, and contemporary cultural norms. In some times and places, the Jewish law, or Halakha, establishes a floor that can be built upon, while in other contexts it builds its own obligations upon existing legal structures and societal standards. Because of the well-formulated and embracing nature of the "Dina Demalchusa Dina" concept in Jewish law, which states (in a broad sense) that the law of the land is the law, the final product is still thought of and construed as a religious obligation under halakha itself, making this case a prime example of one in which law and culture can and do influence religion.

INTRODUCTION

Child support, or child maintenance, can refer to the obligation that parents have toward their offspring within a marital family structure, or to an ongoing periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship. Because it is so central of an institution, almost every legal system, religious or otherwise, has devised rules and structures to govern the calculation and distribution of this support.

Part I of this article establishes a framework for dealing with the intersections between law, religion, and culture. It also provides a background for child support in Jewish law, with an explanation of its legal development and application for the modern era. Part II of this article focuses on American legal standards for the same question, with a particular focus on New York as a typical state. Part III of this article argues from empirical evidence (court decisions, legislative practice) that the social norms in America are indeed changing, and that states are moving towards a standard that recognizes the need for child support all the way through a college education, instead of relying on a classic bright-line age-cutoff rule. Part IV of this article looks at employment statistics in the contemporary United States. It concludes that in order for a husband to fulfill the halakhic requirement, and for judges to award the proper amount in mandated child support, Jewish judges and arbitrators need to be aware of and in tune with both the legal progression and the cultural tide when making their determinations.

This example and case study is quite important for a modern society looking for paradigms to deal with questions of what happens when law and religion offer competing, or non-competing but different, visions for how a society should run. Rather than sparking fear, controversy, or aggression, these questions can and should provoke the desire amongst the religiously faithful and civic-minded to find nuanced answers, ideologically truthful and grounded in religious and legal integrity alongside practical effectiveness. Openness, including the built-in flexibility to allow other systems appropriate amounts of influence when necessary, should be the order of the day in establishing a truly respectful and integrated pluralistic society.

1. THE HALAKHIC BACKGROUND

   Both law and religion operate on a system of commandments and corresponding commitments, obligations that are multifaceted and often lead to long-term accountability. It is often said that law gives religion its structure, and religion gives law its spirit. Law encourages devotion to order and organization, while religion inspires adherence to both ritual and justice. Law and religion influence each other in many different ways, but this article will address two of these ways: shared language and shared values.

   In regard to shared language, until the last century, secular law, and American law in particular, had almost unconsciously inherited and adopted the ideological categories of people created by the Western religions. This is especially true of those categories arising from the Judeo-Christian tradition. For instance, while not purporting to be religious in nature, the civil laws of marriage almost naturally assumed that "marriage" was a generally permanent union between one man and one woman (perhaps for the recognized purpose of pro-creation), and took for granted that no one else should be allowed to participate in that bond. (1) Modern democracy has recognized this reliance on religious terms, and has become somewhat uncomfortable with this shared language. (2) Advocates of same-sex marriage, for instance, have tried to push back against these various boxes and delineations, challenging the law to eschew all connections to prior religious influences. (3) In doing so, they have been willing to sacrifice all possible benefits that could be derived from preserving a common language on the altar of church/state separation. (4)

   On the other side of the coin, while these shared terminologies made their way into our legal system from out of our collective underlying preconceived and overtly religious notions, it is also interesting to explore how secular law has turned around and influenced religious legal thinking in these areas. For instance, in defining people entirely by a subset of their actions--by their sexual orientation--the law developed new categories that religion had not previously dealt with. In doing so, it forced the creation of reactions and responses to groupings and divisions that had not previously been religiously defined or legally addressed. Thus, in the twentieth century, the first halakhic is found, or Jewish law responsa literature, dealing with "gay people," as opposed to just people who may or may not behave in certain ways or perform certain actions?

   Therefore, law and religion share and shape each other in terms of the language that they use internally, when they deal with their own issues; when law addresses marriage and borrows an understanding; when religion addresses discrimination and borrows a classification. But they also shape each other more fundamentally, in sharing and in changing one another's values.

   While it is perhaps more obvious how religion affects the workings of the law--just look at how many cases the Supreme Court has heard about First Amendment issues, or how many exceptions, carve-outs, and codes exist for dealing with particular groups and constituencies (6)--the opposite is also true. While it may not be the case for all religions, from a Jewish law or halakhic perspective, it is also true that law influences and changes the religion. These changes are not only in terms of the language that Jewish people use to express their values, but also in the substance of those underlying values themselves.

   This idea is not a new one. Under Jewish law, there is a normatively binding concept called "Dina Demalchusa Dina," which means that the law of the land is the law. The Talmud in Tractate Nedarim (7) credits the 3rd century sage Samuel with this rule. Historically speaking, the conquest of Babylonia from the Parthians by Ardashir I, king of the Sassanids in 226 C.E., brought an end to the period of tranquility from which the Jews in Babylonia had benefited. Losing their political and religious autonomy, they had to adapt themselves to the powerful and centralized Sassanid rule. In 241 Shapur I, son of Ardashir, succeeded to the throne and granted the minorities under his rule some cultural and religious autonomy, which also applied to the Jews. (8) Samuel, their leader at that time, imbued Babylonian Jewry with the sense and consciousness that they must become reconciled to the new government, and recognized the new Sassanid kingdom as a civilized rule possessing good and equitable laws, which Jews were bound to obey. (9)

   The exact legal basis for this principle is a matter of some dispute. One responsum of the geonic period states that it is simply the "will of God" that Jews should obey the laws of their rulers, (10) while other early commentators connect it to the Seven Noahide Laws. (11) According to many, Dina Demalchusa Dina is contractual in theory; as one medievial commentator put it, civil law is binding "[f]or all the citizens accept the king's statutes and laws of their own free will." (12) Perhaps most famously, Maimonides explains the rule as binding "[f]or the inhabitants of that country have accepted him [the king] and take it for granted that he is their master and they are servants to him." (13) Still others, like the Tosafists, based the rule on the right of the rabbinic court to expropriate a person's property. Essentially, this means that the halakhic scholars, by virtue of their authority to enact decrees in monetary matters, even in opposition to the laws of the Torah, have in certain matters recognized the customs of the kingdom and its statutes and have decided that they should be enforced. (14) Some take the view that the legality of the king's statutes derives from the simple fact that the land belongs to the king (or government), who lays down the conditions of residence, (15) while still others see the halakhic validity of custom as the basis for the rule of Dina Demaluchusa Dina. (16)

   Regardless of the reason behind it, what this rule does at face value is to remove the tension in a conflict of laws scenario. Unless the laws of the country are unfairly discriminatory, (17) or violate some deeply held fundamental Jewish value (18) (which they rarely do), the secular law itself becomes imbued with religious significance. Thus, it is a religious obligation, for instance, not to cross...