The Form is the Message

Last week, the Cosgrove family took its annual road trip – this year from Ohio to Indiana to Michigan to New York, through central Pennsylvania. It was a great trip. We visited old friends, saw Niagara Falls, saw where Daddy went to college and experienced slices of America that my children could never have imagined. My thoughts turn to Pennsylvania, a state I once heard described as Pittsburgh and Philadelphia with Alabama in the middle. Going to a county fair in Central Pennsylvania, with cotton candy, a demolition derby and not a yarmulke within miles, my children saw that their America in Manhattan is ever so slightly different than the America of, well, most of America.

And boy, did they feel it. Every “right to life” sign we passed, every “Jesus loves you” billboard, every Bob Evans, Chili’s and Applebee’s wafting the scent of foods that they could not order, they felt their Judaism like they never had before. So it wasn’t a surprise to me, when from the back of the car one of my children blurted, “Hey Dad, when I grow up, if I decide not to keep kosher, will you be mad at me?”

The question hung in the air like a pitch on the way to the batter’s box. I remember thinking, “Parenting moment, parenting moment – don’t mess this one up.” I knew then and still know now that in the big scheme of things, as parenting questions go, this one is pretty tame. Should the worst problem I face as a parent be my child dabbling on the wrong side of the menu, that is a high class problem.

But I also understood that the fate of this question, or more to the point, my answer, was not dependent on what I said, but on how I said it. On the surface the question was about Jewish observance, but I understood that the form of my answer would become my message – not just the content of my response, but the style. Because that question was not just about kashrut, but about the realities and complexities and limitations of parental authority, affection, Jewish identity and much more.

Before I share my answer, I need to take you on a rather involved tangent, which, though it may not seem so at first, will – I promise – lead us back to my answer.

The late great Professor David Daube once gave a lecture entitled “The Form is the Message.” Daube was the most preeminent and prolific scholar of Greek, Roman and other ancient legal systems of the 20th century. In this address, he turned his attention to three particular legislative moments – the Bible, the Mishnah (the compilation of Jewish law edited by Rabbi Judah HaNasi around the year 200 CE), and the New Testament. The title of the lecture says it all, in that his focus is not so much on the content of the law, but rather its form. For instance, he explains that biblical law is often framed as either a list of “thou shalts” and “thou shalt nots,” called apodictic law; or as a casuistic formulation – “if you do X, then Y will result.” A good example of biblical apodictic law is the Ten Commandments: “Honor thy father and mother,” and “Thou shalt not murder.” This week’s parashah, Ki Tavo, serves as a perfect study of the tone of biblical law; it is filled with blessings and curses. “Cursed be anyone who makes a sculptured or molten image … cursed be he who insults his father or mother.” Or, slightly more upbeat, “If you obey the Lord your God … God will set you high above all the nations of the earth. (Deut. 28:2)

The laws of the Mishnah, on the other hand, come in a very different form. There are many exceptions (the Mishnah is a huge book), but Daube shows how the rabbis of the Mishnah often communicate legal content descriptively. “When the month of Av arrives, one reduces joy,” or “One does not sell pagans bears or lions or anything dangerous,” or apropos of the season, “One does not let children fast on the Day of Atonement, but trains them a year or two before they come of age.” Daube suggests that the language of the Mishnah is often expressed grammatically in the “indicative present”; in other words, something is stated as a fact. The Mishnah tends not to say, “One should or should not do” but rather states Jewish practice as normative. Furthermore, on occasion the formulation of Mishnaic law rests on a series of unstated assumptions. For example, the Mishnah famously begins with the question “From when [what time] does one recite the Sh'ma?” (Berakhot 1:1). It is a sermon for another day to look at why the foundational code of Jewish law begins with this particular question, but Daube’s point is that the form of the question itself is significant. It does not ask if one should say the Sh'ma, it does not ask what will be the consequences if one does or doesn’t say the Sh'ma. The question simply seeks to clarify a technical question regarding a presumed behavior. In other words, the tone of the Mishnah presupposes a set of duties, normative Jewish conduct. The statement of the law never gives room for the “if” question, it jumps directly to the “how” – how a Jew recites the Sh'ma, how a Jew observes the holidays, how a Jew behaves.

This brings us to the more interesting question – the question that academics like Daube, to their credit, never presume to explain, but that Jewish preachers like myself love to ask – the question of why? If the Bible is a list a do’s and don’ts with curses and blessings, and the Mishnah is a series of descriptive statements clarifying how a Jew should behave, then what do these two very different forms of say about the context in which they functioned?

In order to answer this question you need to come a bit further down the rabbit hole with me. Our parashah is called Ki Tavo, “When you enter the land.” The laws it contains are meant to apply at a time when the Israelites had sovereignty and lived as a people in the land of Israel. The Mishnah, though also composed in the land of Israel, was written in a very different historical moment – following the destruction of the Second Temple and the loss of Jewish sovereignty, a time when the Jews had far greater engagement with surrounding non-Jewish culture. It is these differences among others that may have resulted in the different styles of law. When I asked my colleagues to explain the difference, I received two equally tantalizing explanations.

The first explanation theorizes that when people live in a cloistered or self-contained society, whether a gulag, a prison, a summer camp or an authoritarian state, the government can and must rule by way of “do’s and don’ts.” The law is prescriptive and commanding. People have no choice but to follow it. Opting out of membership is not a choice. The law is the way the leadership keeps people in line, telling them what they can and can’t do. This was the biblical context. There was a real state, real authority and real boundaries that could be enforced

The context of the Mishnah, however, was very different. Theory one explains that unlike the Israelites of biblical times, Jews in the era of the Mishnah were exposed to and had access to alternatives. Boundaries had to be set with awareness that the listener knew he had the option of “stepping out.” Consider a parent who says, “that is not how a mensch behaves.” We know, of course, that one can choose not to act like a mensch, but if one wants to be defined as a mensch, then these are the behaviors that go along with the definition. It is a manner of assigning identity with a velvet glove. Choose to do X or don’t, but don’t presume to assign yourself the label unless you are willing to opt-into behaviors associated with that label.

The second theory, briefly, is that unlike the Bible, the Mishnah described behaviors in the abstract, not what was actually being practiced. This theory suggests that the Mishnah did not, by any stretch, describe normative practice of the Jews of that time, but rather the practice of an elite and pious few. The practices the Mishnah described and legislated, while they would go on to become the basis for rabbinic Judaism, were at the time the behavior of the minority. According to this theory, in the time of the Mishnah, it would have been tactically absurd to state “thou shalt or shalt not.” Rather, the best the rabbis could do, what they did do, was write simply, “this is how a Jew behaves" … should you choose to behave this way.

There may be other explanations and neither of the explanations I just outlined is airtight, but believe it or not, they both circle back to my daughter’s question. Because if I had to characterize our Jewish moment, I would suggest it is far more analogous to the time of the Mishnah than to that of the Bible. We live in a time when Jews are totally immersed in a non-Jewish context. Each one of us could, if we so chose, opt out of Jewish practice. Each one of us knows that the decision to observe Shabbat, celebrate the holidays, or keep kosher is a freely-made choice, a decision that puts one in the minority – not just within secular society, but within the Jewish community itself. To state the obvious, if you live an observant Jewish life, you are a minority. All of which means that in terms of the project of religious education, if one seeks to encourage Jewish practice, one is ill-advised to do so by proclaiming “Thou shalt do X.” Rather, one can and should state what Jewish practice is or isn’t and model it in a way that is so rich and textured, that a would-be participant is drawn to adopt that definition. Any educator will tell you that when trying to shape behavior in a free society, one is better advised to state and model what it means to be a mensch, a Jew, a citizen or whatever – to model it so that it is not just a norm, but an aspiration.

I don’t remember exactly what I said to my kid at that moment in the car. I think it was something to the effect of, “Look, there are certain things that are important to me and your mother. We read a lot, we laugh a lot, we go to Israel as much as we can, we try to exercise every day, we celebrate Shabbat and yes, we keep kosher. These are things that are important to us as Jews, as Americans and as human beings. I can’t control what you will or won’t do when you grow up and live your own life. But I hope you will always have in your mind how your mommy and daddy created their home and this will be the world you want when you create a home for yourself.

I don’t know if I got the answer right. We can all meet back in twenty-odd years and compare notes. This morning let me just say this. Maybe, just maybe, as we have been wracking our brains about the future of American Judaism and here in this building, the future of Conservative Judaism, we have been missing a critical part of the conversation. I don’t think the future of Conservative Judaism rests on figuring out whether swordfish is or isn’t kosher, or whether this or that prayer should mention matriarchs as well as patriarchs. I don’t think the future of Conservative Judaism will be determined by finding out who exactly wrote the Torah and what is the right balance of scholarship and faith, or tradition and change. Maybe, just maybe, the future of Conservative Judaism lies in the realization that the form is the message. There is a tone of expressing Jewish life that is desperately lacking in Jewish public discourse. Unlike those to the left of us, we need not validate every option in the marketplace of Jewish practice. There is nothing wrong with being assertive and unapologetic about a definition of how one expresses Judaism. But unlike those to the right of us, our Judaism need not and should not be expressed with guilt, coercion or compulsion. The Conservative movement should model a trope of religious language and leadership that is both authentic and non-judgmental. “This is how Shabbat is observed.” “This is what kashrut is about.” “This is how a Jew celebrates Rosh Hashanah and Yom Kippur.” We will give you the tools, and we will model a practice that is compelling. You don’t need to remind me what I know to be self-evident, that all of us live in a society where the decision to opt out rests in the hands of every Jew. It is not rocket science, but if we could cultivate a vocabulary to educate, inspire, empower and model Jewish lives worth emulating – wow! – that is project worth signing on to. That is a project worth building a movement upon.

When I was a kid, my mom used to sing us a ditty, a cute song that her father used to sing to her when she was a child in England. I promised the cantor that I would never sing from the bimah and I am not going to start today. But I’ll share some of the lyrics. The song lists a series of actions, some of them commanded, some of them not. The first stanza begins with “never mix your milchigs with your fleischigs; the second, “don’t forget to go to shul on shabbos.” My favorite verse, “always be willin’ to lay tefillin and make a minyan up.” I don’t remember the whole song, but I do remember two things. First, it wasn’t just a ditty that my mom sang; it was the way she ran and still runs her household. As kids we all went to shul on shabbos, we didn’t mix our milchigs and our fleischigs and you better believe that when the shul called and said we were needed for minyan, the Cosgrove boys were there. Second, I also remember the final line of the song. After all the behaviors are listed, it concludes. “If all these things you do folks will surely say of you: you’re a bale batish mensch (an upstanding mensch).”

“If all these things you do folks will surely say of you: you’re a bale batish mensch.” Not bad, Mrs. C., not bad at all. It is not foolproof and there are risks involved, but given the terrain, it is as simple and strong a way forward as possible. Let’s you and I, all of us together, define, assert and model a joyful definition of what it means to be a bale batish mensch, what it means to be an upstanding Jew. The chips will fall where they may, but maybe, just maybe, there will be more and more people who will opt to come along for the ride.