Beyond Interpretation: the “Cultural Approach” to Understanding Extra-Formal Change in Religious and Constitutional Law

in Journal of Law, Religion and State
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A challenge common to both religious and constitutional law is the need to respond to changes over time. Both systems typically have formal amendment mechanisms: prophets and Article V of the United States Constitution, for example. But significant changes occur outside these formal mechanisms. This article presents a single framework, which I call the “cultural approach,” that identifies the points at which extra-formal change can occur in both religious and constitutional law. The cultural approach has many promising benefits. It shows how cultures can change while maintaining continuity with the past, and enables identification of changes that otherwise can be difficult to spot. Because different cultures accommodate change in similar ways, the cultural approach suggests that there may be benefits to cross-cultural study. Furthermore, the cultural approach can help members of particular cultures identify culture-specific mechanisms by which changes may be pressed, thereby facilitating use of the full range of institutions in their culture that properly play a role in change. Finally, the cultural approach provokes explicit consideration of the benefits and costs of allowing for change at each of the three stages that the cultural approach identifies.




 See Broyde, supra note 21, at 13. This step in Rabbi Broyde’s reasoning is known as an okimta, which I also associate with Step Two shifts. See infra at text and note 72. Rabbi Broyde’s analysis thus involves shifts at bothSteps One and Two.


 See Broyde, supra note 21, at 13.


Resp. Mayyim Hayyim (1934), Part I. § 143, quoted in Zohar, supra note 28, at 340-341.


347 U.S. 483 (1954).


 See Tyerman, supra note 11, at 29-30.


 See Sagi and Englander, supra note 72, 275-77 (bringing sources).


410 U.S. 113 (1973).


505 U.S. 833 (1992).


  539 U.S. 558 (2003).


 See Yair Ettinger, “Leading Haredi Rabbi Refuses to Endorse Letter Forbidding Rental of Homes to Arabs,” Ha’aretz, December 8, 2010 (quoting one of Rabbi’s “confidents” as explaining the ruling on the basis that “we will not irritate others”); Ian Deitch, “Yosef Shalom Elyashiv Dead: Revered Ultra-Orthodox Israeli Rabbi Dies at 102” 2012. Huffington Post, July 18.


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