From time immemorial, Jews have always been concerned with the question of Jewish survival. In fact, much ink has been spilled about the demise of Judaism and the Jewish community, although the tradition has remarkably had enormous staying power. But in recent years, especially since the 1990 National Jewish Population Study, which showed rising intermarriage rates, and the 2013 Pew Report, which showed declining religious observance and affiliation, especially among younger adult Jews, the issue of Jewish continuity, if not survival, has taken on much greater urgency and is a widely debated topic in both academic and Jewish communal leadership circles.

In a new scholarly book, The Myth of the Cultural Jew: Culture and Law in the Jewish Tradition, Roberta Rosenthal Kwall, the Raymond P. Niro Professor of Law at DePaul University in Chicago, not only provides a unique framework for gaining a deeper understanding of this complex matter, but also for gaining a deeper understanding of the evolution of Jewish law or halakhah. Indeed, in this thought-provoking book, Kwall makes a major methodological contribution to the academic study of Jewish law and, more generally, the Jewish tradition.

The Myth of the Cultural Jew is an outgrowth of Kwall’s legal scholarship in the area of intellectual property law, where, as she says: “It had suddenly occurred to me that the Jewish tradition is very much like a work of art that has been composed jointly by its many human authors, and based (at least in my view) on its Divine origin.” Like determining the provenance of a precious artistic creation, Kwall carefully ponders, in examining the Jewish tradition, the issue of continuity and change: namely, how much change is permitted within the context of the tradition before it gets diluted of meaning or completely loses its authenticity – and who gets to decide to make modifications to the tradition – and on what basis of authority do they get to do so.

To address these critical questions, Kwall asserts, in the introduction of the book, that contrary to popular belief, Jewish law and Jewish culture are not isolated, separate concepts but are inextricably linked, with each having an influence on the other. Viewed from this nuanced perspective, she posits that Jewish law can best be understood through the prism of cultural analysis, which has recently gained greater currency in secular legal studies. In contrast with more conventional legal analysis, this paradigm rejects the notion that law is objective and neutral, but sees law as the product of both precedent and larger cultural forces. It also sees law as organic and fluid: the product of vigorous debate and discourse in response to changing historical and social circumstances. Put another way, law is not seen as a distinct, abstract autonomous entity but rather as both influencing and being influenced by the surrounding political and cultural milieu within which it inhabits, including the existing power relationships in society.

After laying this methodological foundation, Kwall devotes considerable space to applying this analytical tool to the historical development of Jewish law, beginning with biblical times. Kwall maintains that from biblical days until emancipation, there have been two major patterns in the development of Jewish law. On the one hand, during the earlier period, especially from Talmudic and post-Talmudic times, there was a top-down process involved, which was rooted in biblical sources and halakhah, with the rabbis playing a major role in the law making process. Even though over time adjustments were promulgated, such as synagogue worship and changes in the way Passover was observed, as well as selective adapting of elements from the various surrounding cultures into which Jews lived, the top-down process is largely characterized by the rabbis being the primary legal decision-makers, with such decisions being drawn in a very narrow and traditional manner.

On the other hand, she says, as time went on, a bottom-up process developed, which was also rooted in classical sources and halakhah, but which is characterized by a much broader human dimension, with the practices or customs of the lay people being incorporated into the development of Jewish law, which were eventually tolerated by the rabbis. Kwall cites changes that took place during medieval times in customs related to circumcision, death and mourning, and kashrut as prime examples of this bottom-up process at work. Indeed, while the top-down process sees Jewish law in narrow and traditional terms, the bottom-up process does so in a much more pluralistic and expansive way, even though it closely stays within the boundaries of the Jewish tradition.

Kwall argues that the development of Jewish law, however, dramatically changed with emancipation and the Enlightenment, where Jews became more active participants in the wider European societies, where they lived. This changing historical situation gave rise to the contemporary Orthodox, Conservative and Reform denominations, with their divergent outlooks on Jewish law. From a cultural analysis perspective, at one end of the spectrum is the Orthodox movement, which sees Jewish law as binding, with extra-legal or cultural factors playing little or no role in the interpretation of the Jewish tradition. At the other end of the spectrum is the Reform movement, which does not see Jewish law as binding but simply as informing Jewish life. Taking the middle ground position, the Conservative movement sees Jewish law as binding but allows for the law’s evolution in light of changing historical and social circumstances, while at the same time, diligently works to preserve the authenticity of the Jewish tradition.

Through this analysis, Kwall not only shows that the rabbis are no longer the sole legal decision makers. In fact, the process of law making today has more of a top-down and bottom-up flavor to it, with rabbis and lay people involved, both of whom being influenced by developments in the larger society. But also her analysis persuasively shows that from a cultural analysis perspective – and in contrast with a more traditional understanding of halakhah – a strong human element exists in the making and content of Jewish law which was – and still is – based largely, although not exclusively, on prevailing power relationships. As a result, there is much greater room for innovation and change in halakhah than one would derive from a more traditional reading of the Jewish tradition – and that such change, in reaction to larger social forces, can take place without diluting the meaning of the Jewish tradition and losing its integrity.

This is not just a theoretical matter; rather, Kwall’s analysis has great practical significance. Take, for example, the way in which the denominations, particularly the Reform and Conservative movements, recently addressed the controversial topics of homosexuality and women’s participation in synagogue rituals. Drawing on classical and broader social and cultural sources, which the cultural analysis perspective would see as a legitimate bases for consideration, she notes that the movements reinterpreted Jewish law in a flexible, humane and compassionate way to provide greater space for homosexuals and women to participate in synagogue life and the larger Jewish community. Interestingly, Kwall points out that there even seems to be some willingness in more liberal circles of the Orthodox community to creatively “[plunge] into the great pool of our tradition,” as Rabbi Asher Lopatin has eloquently put it, to try to find a way to resolve such complex and emotionally charged issues. This reinforces the notion that Jewish law has the potential of being applied in a more expansive and inclusive way.

Kwall’s cultural analysis framework not only provides valuable insights into the development of Jewish law. It also provides a lens to examine the debate on the issue of Jewish continuity and survival in the United States, the subject of which she turns to in the final section of The Myth of the Cultural Jew. Like other observers of the American Jewish landscape, Kwall indicates that the content of Jewish identity for a majority of Jews in the United States is not shaped by halakhah; instead, it is largely informed by Jewish cultural and political influences, including Israel, the Holocaust, anti-Semitism, liberalism, as well as involvement in Jewish organizational life. In this sense, then, many, although not all, American Jews can be seen as cultural Jews.

But in tying together her earlier analysis of the development of Jewish law and, more broadly, the Jewish tradition with the question of Jewish continuity and survival, Kwall unequivocally asserts the myth of the cultural Jew: that from a cultural analysis perspective, Jewish culture and Jewish law are not separate spheres but inextricably connected. Indeed, in her view, this means that the primary cultural “markers” of American Jewish identity today have a clear basis in the Jewish tradition, although most Jews in the United States are unaware of this inseparable connection. Therefore, the challenge of the future involves grounding these cultural influences more explicitly and deeply in halakhah and the Jewish tradition so that Jewish identity in America has more substantive content. This is necessary because Jewish culture alone is insufficient for guaranteeing Jewish survival. But it also means making a concerted effort to educate non-Orthodox American Jews that many of the Jewish cultural practices they are actively engaged in are actually rooted in the Jewish tradition.

To accomplish this, Kwall suggests the teaching of aggadah, which includes the vast body of Jewish law, literature and folk wisdom, as a basis for moving forward because it has the potential to reach a wider audience than solely classical or traditional sources. In making this recommendation, she understands that much more thinking needs to be done to determine how best to educate American Jews about their own heritage. But her idea serves as a starting point for sparking further debate and conversation on the effective manner in which strengthening the content of Jewish identity in the United States could be achieved – and what that content should encapsulate.

Indeed, to push Kwall’s analysis further, for example, one could argue that the shape of Jewish identity in the future ought be grounded not only in the Jewish tradition, but also more firmly in the American experience as well. And, what’s more, the content of such identity must be positive, compelling and meaningful, or American Jews, to the extent they are so inclined, will turn elsewhere for spiritual guidance. It also needs to be communicated in language that is contemporary, appealing and understandable. To be sustainable, it has to be actively affirmed and linked to community, some kind of ritual or religious observance, and to Israel as the embodiment of Jewish peoplehood. Undoubtedly, Kwall understands the need to move in this direction and clearly recognizes the power dynamics and relationships involved in the process of recasting Jewish identity in such as way, although one wishes she explored the implications in her discussion of proposed steps for the future.

In the meantime, the stakes of this debate are very high. Even though anti-Semitism remains a problem in the United States, a far greater challenge today is growing assimilation. Ironically, American society is not plagued with overwhelming Jew-hatred, but that it is too open and welcoming, making it easy to for America’s Jews to shed their particularistic Jewish identities. As such, Kwall’s book deserves careful attention as we seek to transmit the beauty and richness of the Jewish tradition to the next generation and enhance the quality of American Jewish life.

(A much shorter version of this review already appeared in jns.org at http://www.jns.org/latest-articles/2015/5/27/debunking-the-myth-of-the-cultural-jew#.VpkyimAz1dg=)