Kwall on Creativity and Cultural Influence in Early Jewish Law

Creativity and Cultural Influence in Early Jewish Law has just been posted by Roberta Rosenthal Kwall, DePaul University - College of Law.  It is forthcoming in the Notre Dame Law Review.  Here's the abstract:

Human creativity thus lies at the heart of Judaism, both from a theological and a legal standpoint. Therefore, there is much scholars who are interested in the creative process from a secular standpoint can learn from 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. This pairing of law and culture requires clear articulations of what culture means and what the relationship between law and culture should look like. 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. 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.

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. 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 the Hellenistic influence, on the development of early Jewish law. Throughout this Part, the Article develops the argument that the need for adaptation to the surrounding environment insured the inherent creativity of the 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.