In the thoughtful but Left-leaning Tablet, a daily online magazine of Jewish news, ideas, and culture, Marjorie Ingall penned a provocative piece entitled, “To Cut or Not To Cut: Finding Alternatives to Circumcision.” In it, she advocates for [Jewish] alternatives to a Brit Milah, male circumcision performed at eight days. Ms. Ingall proposes new rituals, seeking to create ways to symbolically acknowledge the Jews’ covenant with God without actually circumcising infants. She alleges, and presumably believes her proposals to be – Jewish rituals.
They are not. And in calling them Jewish, she is stealing Judaism’s trademark. Ms. Ingall is free to create a new faith (as Mohammad did, according to the Qur’an, around 610, or as Joseph Smith did in the late 1820s, when he created The Church of Jesus Christ of Latter-day Saints), each with its own belief system and practices. I propose she call hers Ingallism, but as its inventor, she can call it whatever she likes, so long as she is not infringing on the rights of others.
In an earlier column, I wrote about “Lapidism – New-Old Faith reinvented by Yair Lapid.” He had advocated for a new definition of Judaism “as a balance between tradition and morality, between the past and renewal, between love of God and love of man.” He too was really seeking to create a new religion. I suggested he call his Lapidism. Neither Ingall or Lapid was intending to create new faiths, but to redefine Judaism. In so doing, each writer, however, was treating Judaism as hefker, ownerless property that anyone can take freely, defining or redefining it as she or he saw fit. I am not the Almighty’s emissary on earth, and it is not for me either to read people in or out of Judaism. But the problem with this line of advocacy is that Judaism, as a factual matter, is not at all ownerless. In fact, it is the exclusive property of the Jewish people, whose rights and title in it have been perfected and defended to the death ever since Abraham (c. 1813 BCE – c. 1638 BCE).
Judaism is an ancient peoplehood, whose norms are determined based on halacha, the ”way,” the collective and slowly evolving body of Jewish religious laws derived from the Written and Oral Torah. It includes the 613 mitzvot (positive and negative commandments”), subsequent Talmudic and rabbinic law and the customs and traditions compiled in the Shulchan Aruch the Code of Jewish Law”).
Halacha, contrary to what some asset, is not fossilized. It evolves, substantively, but slowly based on consensus. While it certainly does not evolve at the speed that some reformers might like, substantive and far-reaching changes have been made over time. To list just a few examples;
- Hillel the Elder ( c. 110 BCE, died 10 CE) instituted the Prozbul as a device to permit collection of debts, effectively overriding debt cancellation in sabbatical years.
- A mechanism for annulment of vows, otherwise prohibited by the Torah.
- Overcoming the general prohibition on charging interest through a heter iska, a “partnership,” facilitating economic interaction.
- Ordinances forbidding polygamy, divorce without a woman’s consent, and protecting the privacy of mail, instituted by Rabbenu Gershom around 1000 CE.
- Prenuptial agreements to reduce incidences of a woman not being allowed to remarry (an agunah) because of a recalcitrant husband.
Like US Supreme Court decisions, great respect is paid to the principle of stare decisis (standing by settled matters), innovating to deal with new matters not previously settled (such as organ donation). As Rabbi Rafael Salber noted, based on the teachings of Rabbi Naftali Tzvi Yehudah Berlin (Netziv), the halacha evolves and eventually, certain matters become settled. The concept, known as hilcheta gemiri lehu in Rabbinic literature. “is mentioned throughout the Talmud, advances the notion of the organic and developmental nature of Halacha. The explanation of this phrase, which evokes an authoritative tone, is that the specific Halacha in question was transmitted from person to person until that generation when the matter was investigated and solidified.” You might like it to be otherwise, but there simply is no Judaism without halacha. The halacha defines Judaism; it’s a sine qua non. It evolves, like the US constitution, slowly, respectfully, and by consensus. That is Judaism, whether or not it satisfies you. You need not agree with its teachings, but you are stuck with the definition.
Think of Jew and Judaism as trademarks, owned by the Jewish people. A trademark is a recognizable sign, design or expression, which identifies products or services of a particular source from those of others.
Trademarks are used to identify and differentiate particular products or services and to prevent confusion in the marketplace. No one (nothing) grants Ingall, Lapid or anyone else the right to misappropriate the mark Jew and its derivatives (Jewish and Judaism) for their own purposes. In essence, Ingall and Lapid are infringing on our trademark, seeking to create knock-off products built on the reputation of Judaism in a way that confuses. It’s not right, it’s infringement, and it’s a fraud on the public.
“What about freedom of expression,” I can hear you query? It’s indeed a fundamental right, but one that has no bearing at all of what infringers are doing. You can design and sew, for example, any garment you like. But call it Prada, Dior, or Hermes, and you’ll have a host of lawyers in your face, breathing down your neck, issuing “cease and desist” orders, and suing for damages right up the Wazoo.
Unlike patents, where society grants the inventor temporary exclusivity, in return for publishing the details of an invention, trademark rights never expire. Rather, trademarks grow stronger over time, the more they are used. Trademark dilution is what happens when you use that mark in a way that would lessen its uniqueness. When you use it to refer to something else, you are diluting the trademark, and whoops – you’re expensively liable and forced to stop.
Judaism is a trademark. A very valuable one. Using it to refer to something else lessens its uniqueness and confuses the public.
That does not imply that Judaism is anything other than a wide tent; it’s not monolithic and never was. Hasidism and Kabbalah are among the groups within Judaism with certain of their own customs. They still operate squarely within the four corners of halacha.
Jews from various diaspora (Yemen, Greece, Roumania, Italy, and Germany, to name but a few) developed their own local customs (minhag) over time). Some of these ultimately were accepted by all of Jewry.
Minhag,(community custom) is also vitally important and deserves respect. The Talmud (Pesachim 50) rules that a valid minhag accepted by previous generations of a family or community is binding upon all later generations. However, Jewish law also provides for a number of mechanisms to change or remove a minhag when it is held to be mistaken or illogical. For example, see Tosafot on Talmud Pesachim 51a; Maimonides, Mishneh Torah, Hilchot Issurei Biah; Be’er Heitev, Orach Chaim 182 in Hilchot Birkat Ha’mazon, Shulchan Aruch Orach Chaim 653 – Hilchot Lulav, or Orach Chaim 551:4 –Hilchot Tisha B’av.)
What about “movements” such as Reform, Conservative, Reform, Jewish Renewal, Humanistic Judaism, or earlier in history, Samaritanism, or Sabbateanism who invented their own halacha. Are they valid too? These all deny the essence of Judaism, that its beliefs and practices are defined and circumscribed by the halacha. These movements are trademark infringers.
All of them. They dilute the trademark by globing on to the Jewish trademark and seeking to pass off their movements as authentic, riding on Judaism’s coattails.
That’s just impermissible.
In our “democratic” times, this concept may seem to some liberally (progressively) inclined as harsh, overly restrictive, and just old-fashioned. But consider. Even Marxists, Communists and other advocates of coercive communal property respect trademarks and understand the need to avoid market confusion.
The issue then is not whether you want to be “more inclusive,” to have the right to eat trief (unkosher meat), to have organs playing on Shabbat when you pray, to choose not to circumcise your son or to invent new rituals that you find satisfying. You have all of these rights and more. Absolutely. You can even choose to opt out of Judaism altogether.
In a free society, you have the right to do many things. You just can’t call what you’re doing Jewish.
That trademark belongs to the Jewish people.
David E Y Sarna is a writer and former entrepreneur. He has eight published books including his latest, Evernote For Dummies, V2. He has nearly completed his first novel about the Mossad and the Jewish treasures in the Vatican’s secret archives. and is hard at work on a book about the Talmud for general readers.
© 2014 by David E Y Sarna