Creativity and Cultural Influence in Early Jewish Law
Kwall, Roberta Rosenthal, Notre Dame Law Review
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. …