Law, Religion, and Culture Intertwined: A Case Study in the Development of American Jewish Law
Goldfeder, Mark, Faulkner Law Review
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.
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.
I. 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. …