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The Chutzpah of Chasidism*

Published online by Cambridge University Press:  18 July 2014

Shauna Van Praagh
Shauna Van Praagh
Affiliation:
Faculty of Law, McGill University
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Abstract

Members of the Chasidic Jewish communities of Montreal lead what appear to be insular lives, sharply defined by physical, cultural and religious boundaries. In describing and questioning the interface between Chasidic and non-Chasidic life and law, the author draws on the theoretical insights of legal pluralism, feminism and what has been labelled “everyday life.” These insights, combined in a critical way, provide the framework and justification for a focus on family relations and education, two crucial aspects of Chasidic experience and identity. Both family relations and education demarcate Chasidic space and communities; they also serve to show how the boundaries are transgressed, blurred, and complicated. Rather than searching for the clearly marked lines that divide Chasidim and non-Chasidim, then, the more fruitful project is one that acknowledges patterns of interaction and constantly changing meanings and practices. It is by recognizing and working with moving boundaries and messy intersections that a picture of life and law—both inside and outside a particular community—can emerge.

Résumé

Les membres de la communauté juive hassidique de Montréal mènent ce qui semble une vie insulaire, délimitée clairement par des frontières physiques, culturelles et religieuses. Décrivant les relations et les modes d'adaptation des hassidims et des non hassidims en droit et dans la vie quotidienne, l'auteure esquisse les bases d'une théorie recoupant à la fois le pluralisme légal, le féminisme et ce que l'on nomme «le quotidien». Ces divers jalons d'analyse constituent le cadre et la justification d'une étude sur les relations familiales et l'éducation, deux aspects importants de l'identité et de l'expérience des hassidims. Les relations familiales et l'éducation délimitent l'espace tant géographique, culturel que religieux de la communauté hassidiques; ces deux objets d'étude permettent également d'observer à quel point les frontières de cet espace sont vagues et complexes et comment elles sont transgressées. Plutôt que de tracer les limites qui séparent les hassidims et les non hassidims, il est plus fécond d'établir un modèle d'interactions et de trouver la signification des pratiques en constante évolution. C'est en tenant compte de la nature mouvante de ces frontières, de ses croisements aléatoires, qu'on peut faire un portrait réaliste de la vie quotidienne et du droit tant à l'extérieur qu'à l'intérieur de la communauté.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 11 , Issue 2 , Fall/automne 1996 , pp. 193 - 215
Copyright
Copyright © Canadian Law and Society Association 1996

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References

1. It is, of course, no accident that this paper starts with a story: a partly imagined and poetic view of the Chasidic Jews who share “my” space, and an invitation to listen to a community whose carefully guarded space is shared in significant ways by their neighbours. The methodology of this paper and the project it introduces and precedes invests in the constant overlap of systems and stories, norms and narratives. With respect to the role, effectiveness and limits of narrative, see Van Praagh, S., “Stories in Law School: An Essay on Language, Participation, and the Power of Legal Education” (1992) 2:1Columbia Journal of Gender & Law 111.Google Scholar

2. In other words, the two systems interact in complex ways rather than simply operating in parallel. As a simple example—relevant to life in the city of Montreal—both Jewish law and state law regulate the parking of cars on Saturdays. Jewish law forbids observant Jews from operating vehicles on the Sabbath, whereas parking regulations may require that a car parked in a particular zone on Saturday be moved if the owner wishes to avoid a traffic fine. The two legal systems are not simply parallel regulators; rather their influence intersects in the experience of the person owning the car. Both have something to say about the same behaviour (moving or not moving the car) but for different reasons and in different ways.

3. See De Sousa Santos, B., “Law: A Map of Misreading, Toward a Postmodern Conception of Law” (1987) 14 Journal of Law and Society 279.CrossRefGoogle Scholar De Sousa Santos draws on cartography to analyse the interaction between law and society, suggesting that the relationship between law and social reality resembles that between maps and spatial reality. In particular, De Sousa Santos draws a parallel to the cartographic mechanism of projection in speaking of the way a legal order defines the limits of its operation and organizes the legal space inside these limits.

4. Given the fact that this research project is carried out under the umbrella of “Critical Legal Pluralism” and forms part of a team effort (joined by Richard Janda, Roderick Macdonald and Jeremy Webber, all of the Faculty of Law and Institute of Comparative Law, McGill University), I find it important to take as part of my task the ongoing examination and definition of the term “critical legal pluralism.” That is, I hope that this piece of the team project will contribute to the understanding, potential and insight of a critical legal pluralist approach. The particular contours of an examination of Chasidic Life and Law sketched here are meant to indicate the space that critical legal pluralism makes available for inquiry. My sense is that a definition of critical legal pluralism is continually evolving and that each project undertaken under its rubric contributes to an understanding of what such an approach implies and allows.

5. See, for example, Griffiths, J., “What is Legal Pluralism?” (1986) 24 Journal of Legal Pluralism and Unofficial Law 1CrossRefGoogle Scholar, in which he defines legal pluralism as an empirical state of affairs marked by the coexistence within a single group of legal orders which do not belong to a single legal system. For a review and analysis of the literature on legal pluralism see also Merry, S. E., “Legal Pluralism: A Literature Review” (1988) 22 L. Soc. Rev. 869.CrossRefGoogle Scholar For the elaboration of a postmodern approach to law of which, he argues, legal pluralism is a key aspect, see De Sousa Santos, supra note 3 and the work of Cover, R. in Minow, M., Ryan, M. & Sarat, A., eds., Narrative, Violence and the Law (Ann Arbor: University of Michigan Press, 1992)Google Scholar who contributes to the body of scholarship on legal pluralism through the investigation of the “nomos and narratives” of communities, in particular that of Orthodox Jews. For a discussion of “critical legal pluralism” as a heuristic devise for exploring the relationship between normative and “legal” orders within social sites, see Macdonald, R., “Critical Legal Pluralism as a Construction of Normativity and the Emergence of Law” (1995) [unpublished].Google Scholar Finally, for a critique of the analytical foundation of the concept of legal pluralism, see Tamanaha, B., “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism” (1993) 20 Journal of Law and Society 192.CrossRefGoogle Scholar

6. For an overview of feminist critiques of both liberal individualist and communitarian approaches to political theory see, for example, Frazer, E. & Lacey, N., The Politics of Community: A Feminist Critique of the Liberal-Communitarian Debate (Toronto: University of Toronto Press, 1993).Google Scholar For a critique of the effects of Jewish law and Jewish religious and social practices on women, see Horsburgh, B., “Lifting the Veil of Secrecy: Domestic Violence in the Jewish Community” (1995) 18 Harvard Women's Law Review 171.Google Scholar For a feminist critique of contemporary theories of justice and understandings of the family, see Okin, S. Moller, Justice, Gender and the Family (New York: Basic, 1989).Google Scholar On women's ethnic and cultural identifications in relation to notions of citizenship and the state, see Yuval Davis, N., “Identity Politics and Women's Ethnicity” in Moghadam, V., ed., Identity Politics and Women: Cultural Reassertions and Feminisms in International Perspective (Boulder, Col.: Westview, 1994).Google Scholar On the tendency to exclude issues of race and class from feminist thinking and politics, see Spelman, E., Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon, 1988).Google Scholar On the use of narrative to explore the intersections of gender, race and class, see Williams, P., The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge, Mass. Harvard University Press, 1991).Google Scholar For examples of work reflecting on feminist methodologies, stories, women's experiences, and the significance of power, see Bartlett, K., “Feminist Legal Methods” (1990) 103 Harv. L. Rev. 829CrossRefGoogle Scholar; Fineman, M. A., “Feminist Theory and Law” (1995) 18:2Harvard Journal of Law & Public Policy 349Google Scholar; Cain, P. A., “Feminist Jurisprudence: Grounding the Theories” (1989–1990) 4 Berkeley Women's Law Journal 191.Google Scholar

7. See Sarat, A. & Kearns, T. R., “Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life” in Sarat, A. & Kearns, T. R., eds., Law in Everyday Life (Ann Arbor: University of Michigan Press, 1995).Google Scholar The authors propose an approach to the study of law that considers law's involvement in people's everyday lives. They contrast this approach to what they call the “law-first” approaches used by theorists who focus either on law's instrumental or constitutive effects. According to Sarat and Kearns, theorists have tended to focus either on the way in which law imposes sanctions and offers inducements (instrumental perspective) or on the way law shapes internal meanings and creates status (constitutive perspective). The authors suggest that law-first approaches mute the interactive nature of the relationship between state law and other normative schemes and commitments in people's lives. They suggest that studying law in everyday life implies going to social sites to immerse ourselves in the study of the “everyday” and providing thickly described accounts of the way people use, ignore, and resist law in novel and unanticipated ways.

8. De Sousa Santos, supra note 3 at 283.

9. Shaffir, W., “Boundaries and Self-Presentation among the Hasidim: A Study in Identity Maintenance” in Belcove-Shalin, J. S., ed., New World Hasidim: Ethnographic Studies of Hasidic Jews in America (Albany: State University of New York Press, 1995) 31 at 60Google Scholar [hereinafter Boundaries and Self-Presentation.]

10. The statistics presented in this section are taken from Shaffir, Boundaries and Self-Presentation, ibid.

11. Roch Côté, A., “Outremont se découvre un ‘problème Juif’” La Presse (13 September 1988) A1.Google Scholar

12. Beitel, Garry, “Bonjour! Shalom!” (Montréal: Imageries, Cinéma Libre, 1991).Google Scholar

13. See Cooper, D., ‘Talmudic Territory? Space, Law and Modernist Discourse” (1996) 23:4The Journal of Law and Society [forthcoming].CrossRefGoogle Scholar Cooper analyses the conflict over the В ämet Eruv in North London, and uncovers the discourse of opposition to a physical “boundary” that would mark off “Jewish space.” Cooper argues that opponents to the Eruv, fearing a sudden invasion of Orthodox Jews into their neighbourhood, attempted to “hegemonize a particular image of social space” through a narrative that stressed not only a historic cultural equilibrium in the neighbourhood but, importantly, an imagined portrait of the neighbourhood's character. That is, the “real” wires that would be strung around a particular geographic space in order to signal the area as a “safe Shabbat zone” somehow destroyed the imagined character of the neighbourhood.

14. Martha Minow notes that this concern for children's own choices arises more frequently when their parents are members of minority religions than in the more common circumstances of other children. See Minow, M., “The Constitution and the Subgroup Question” (1995) 71 Indiana Law Journal 1.Google Scholar

15. Bauer, Julien, political science professor at Université du Québec à Montréal, and author of Les Juifs hassidiques (Paris: Presses Universitaires de France, 1994)Google Scholar, part of the “Que Sais-Je” series, has speculated on the parallel suggested here. See also Cooper, supra note 13. She offers an insightful critique of the juxtaposition of British collective national identity and the construction of distinctively religious borders. There are obvious comparisons to be made with Outremont and with the stories told of the character of the neighbourhood which is to be kept safe from the changes brought by the invasion of newcomers and the “invisible” boundaries around these Chasidic Jews. In many ways, those boundaries feel more “real” than the physical wires strung high over people's heads and rooftops.

16. These are also, not surprisingly, the issues that have brought Chasidic communities to the attention of the broader Montreal community. The ways in which law regulates and directs the use of space, and thus the development of communities and neighbourhoods, is beyond the scope of this paper but clearly forms part of a larger investigation of Chasidic life and law.

17. See Sally Falk Moore's development of the concept of a semi-autonomous social field to describe entities that generate and ensure compliance to their own rules and customs distinct from the law of the state. Falk Moore, S., Law as Process (London: Routledge, 1978).Google Scholar Also see Griffiths, supra note 5; Merry, supra note 5. For an analysis of the contemporary paradigms of cultural pluralism, legal pluralism, and civic republicanism through a consideration of the historical example of the Jewish Kehilah, an insular Jewish community in medieval and early modem Europe, see Myers, D. N. & Stolzenberg, N. M., “Community, Constitution and Culture: The Case of the Jewish Kehilah” (1992) 25 University of Michigan Journal of Law Reform 633.Google Scholar Also see Weyrauch, W. O. & Bell, M. A., “Autonomous Lawmaking: The Case of the ‘Gypsies’” (1993) 103 Yale Law Journal 323CrossRefGoogle Scholar, who use the example of the gypsy legal system to argue that numerous sources of private law-making coexist with, and are influential in shaping, the law of the state.

18. Fraser & Lacey, supra note 6, argue that, although communitarians have mounted an effecive critique of liberal individualism by drawing attention to the need to recognize the social embeddedness of individual identities, most have failed to develop a genuinely political analysis of the communities whose importance they underscore. They suggest that communitarian theorists have thus far failed to acknowledge, let alone escape, the gender blindness prevalent in most political theory.

19. For a discussion of domestic violence in the Jewish community, see Horsburgh, supra note 6. Horsburgh argues that Jewish law and religious/social practices help sustain an environment that is conducive to wife abuse. Horsburgh also criticizes the writings of Jewish law professors for presenting an idealistic picture of Jewish law, thereby failing to attend to what she sees as its gender bias and disregard for women's needs. In particular, in discussing the work of Robert Cover, Horsburgh argues that the latter fails to examine critically the way in which the “nomos” of a community or culture might silence the “hermeneutic impulse” [Cover's terms] of many of its own members, namely women.

20. It is interesting to note the scarcity of explicitly feminist perspectives on legal pluralism generally and on the application of legal pluralist approaches to different legal and normative systems. I would argue that insights drawn from feminist critiques of communitarianism are applicable to legal pluralist analyses, highlighting the need to attend to the way in which women may be subordinated by both state and non-state legal or normative orders.

21. For the introduction and development of the concept of “critical legal pluralism,” see Macdonald, supra note 5. Macdonald conceives of critical legal pluralism not as a description of given entities in the world, but as a heuristic device for exploring normative orders as contingent relationships between particular norms and patterns of ordering. See also Benton, L., “Beyond Legal Pluralism: Towards a New Approach to Law in the Informal Sector” (1994) 3 Social and Legal Studies 223CrossRefGoogle Scholar, who argues for the need to refine and recast the notion of legal pluralism. Through a consideration of the role of law in the informal housing and employment sectors, Benton argues for the need to revise the traditional view of legal pluralism as a set of “stacked” levels of law in order to better account for the complexity of social experience which informs legal behaviour.

22. I use the term “legal presence” to signal something less structured than a legal “order” or “framework.” That is, I want to insist on the difficulty of pinning down the contours of the normative directives in people's lives.

23. In other words, the need for a feminist critique of legal pluralism mentioned above (supra note 20 and accompanying text) doesn't apply as directly to “critical legal pluralism” conceived as a heuristic device for exploring normative understandings and arrangements among various social actors. (See supra note 21 and accompanying text.) That is, such a device could also be used to explore the ways in which these normative understandings and arrangements may work to subordinate women within different social fields. Of course, this still leaves open the question of whether this inquiry has been embarked upon and, if not, why it hasn't. It seems that the potential receptiveness of a critical legal pluralist approach to the incorporation of feminist concerns remains in question: that potential is tapped in this project.

24. See Sarat & Kearns, supra note 7, who sketch an “everyday life” approach in contrast to what they call a “law-first” approach.

25. For a discussion of how state law shapes the everyday lives of women but how women seldom have a say in shaping the law, see C. MacKinnon “Reflections on Law in the Everyday Life of Women” in Sarat & Kearns, ibid., 109.

26. The example of wife abuse illustrates the array of factors involved in shaping people's lives. Even if a Chasidic woman's decision to stay with her abusive husband might be guided partly by Jewish law or community norms, she may also have considered that her community represented the most supportive environment for her to work through the situation. Also, like most abused women in broader society, she may have emotional and psychological reasons for being unable to leave an abusive relationship. Normative forces combine with a host of personal and social factors which weave themselves into people's experiences and which those people may not understand as “normative.”

27. With respect to Chasidism and Chasidic communities, see the following: Bauer, supra note 15; Belcove-Shalin, ed., supra note 9; Mintz, J. R., Hasidic People: A Place in the New World (Cambridge, Mass.: Harvard University Press, 1992)Google Scholar; Schneerson, M. M., Toward a Meaningful Life: The Wisdom of the Rebbe (New York: William Morrow, 1995)Google Scholar; Shaffir, Boundaries and Self-Presentation, supra note 9; Shaffir, W., “Life in an Urban Chasidic Community: Insulation and Proselytization” (Doctoral Dissertation, McGill University, 1972) [unpublished]Google Scholar; Sharot, S., “Hasidism in Modern Society” in Hundert, G. D., ed., Essential Papers on Hasidism (New York: New York University Press, 1991) 27.Google Scholar

28. An analogy can be found to the resistance by non-Orthodox Jews to the stringing of wires around a particular geographic territory to construct an eruv. See Cooper, supra note 13. While such resistance can be deconstructed and criticized, it is connected to an important assertion that Orthodoxy or, in the case of this paper, Chasidism, is not “equivalent” to Judaism; that Chasidic Jews do not represent all Jews; and that the state should not mistake one group for the other.

29. A “minyan” refers to the number of people, traditionally ten men over the age of 13, needed for a prayer service.

30. Slonim, R., “A Chassidic Feminist Speaks Out” (Presentation, Montreal Torah Center, Chabad Adult Education Institute, 4 June 1996) [unpublished].Google Scholar Ms. Rivkah Slonim is the Education Director of the Chabad Jewish Students Center, Binghamton, New York.

31. See, with respect to women, Chasidic, Davidman, L., Tradition in a Rootless World: Women Tum to Orthodox Judaism (Berkeley: University of California Press, 1991)Google Scholar; Davidman, L., “Accommodation and Resistance to Modernity: A Comparison of Two Contemporary Orthodox Jewish Groups” (1990) 51 Sociological Analysis 35CrossRefGoogle Scholar; L. Davidman & J. Stocks, “Varieties of Fundamentalist Experience: Lubavitch Hasidic and Fundamentalist Christian Approaches to Contemporary Family Life” in Belcove-Shalin, ed., supra note 9, 107; El-Or, T., Educated and Ignorant: Ultra-Orthodox Jewish Women and Their World, trans. Watzman, Haim (Boulder, Co.: Lynne Rienner, 1994)Google Scholar; Kaufman, D., Rachel's Daughters: Newly Orthodox Jewish Women (New Brunswick, NJ: Rutgers University Press, 1991)Google Scholar; B. Morris, “Agents or Victims of Religious Ideology? Approaches to Locating Hasidic Women in Feminist Studies” in Belcove-Shalin, ed., ibid. 161; Myers, J. & Litman, J. R., “The Secret of Jewish Femininity: Hiddenness, Power, and Physicality in the Theology of Orthodox Women in the Contemporary World” in Radavsky, T. M., ed., Gender and Judaism: The Transformation of Tradition (New York: New York University Press, 1995) 51Google Scholar; Rapoport-Albert, A., “On Women in Hasidism, S.A. Horodecky and the Maid of Ludmir Tradition” in Rapoport-Albert, A. & Zipperstein, S. J., eds., Jewish History (London: Halban, 1988) 495.Google Scholar For a fascinating recent novel that describes the life of a Chasidic girl growing up in Brooklyn, see also Abraham, P., The Romance Reader (London: Quartet Books, 1996). 32.Google Scholar

32. For an analysis of the problem of wife abuse in Orthodox Jewish communities, see Horsburgh, supra note 6 and Scarf, M., “Marriages Made in Heaven? Battered Jewish Wives” in Heschel, S., ed., On Being a Jewish Feminist (New York: Schocken, 1995) 51.Google Scholar

33. One of the students participating in the research project is a Lubavitch woman who will complete her law studies at McGill in 1996, and, during those studies, will have given birth three times. She is, obviously, a valuable resource person in the role she can play as a link between the Faculty of law and the Chasidic community to which she belongs.

34. Interview with Howard Nadler, Program Manager at Batshaw Youth and Family Services (Interview conducted by Sarah Lugtig, student research assistant, on 13 June 1996).

35. De Sousa Santos, supra note 3 at 297–98

36. It is interesting that one of the participants in the Law and Society Association conference at which this paper was presented commented that the difference between the work done by Davina Cooper on the eruv (supra note 13), and the direction of this project, was that I seemed to be more concerned in the end with what happens within particular space, rather than with pinning down the invisible boundaries around that space. There are clear intersections between the two projects, but the conflict over the eruv naturally pushes the discussion in that context toward a focus on the clash between different (imaginary) boundaries constructed by different individuals and communities. Further, the arguments justifying the legitimacy of the eruv seemed contingent, as Cooper points out, on positing the equivalence of Jewish law and state law and advocates presented Jewish law or halacha as singular, certain, nonvoluntary and hierarchical. By way of contrast, my project does not center on any given conflict between norms or imaginaries. It also starts with a story that indicates the way in which Montrealers, both Chasidim and non-Chasidim, assume that there are boundaries between them. They know which neighbourhoods are home to Chasidic communities; the markers are visible and, thus, there is no theoretical focus on the threat of a physical line-drawing exercise.