I have long been a fan of Professor Roberta Rosenthal Kwallâ€™s work. Her thoughtful consideration of issues at the intersection of creativity and spirituality has done much to provide an important counterbalance to the law and economics scholarship that has emerged as a commanding voice in intellectual property law. Her book, The Soul of Creativity: Forging a Moral Rights Law for the United States (2009), cemented her reputation as an IP scholar who, earlier than many, recognized the need for a more expansive view of copyrightâ€™s incentive story to include creativity motivated by internal desire and self-fulfillment rather than economic exploitation. Although we often approach issues from different perspectives, we share an interest in thinking about whether intellectual property law should pay greater attention to widely shared interests that relate to such intrinsic motivations, such as attribution and reputation.
Absent the authorâ€™s name, I admit I would not have been likely to read The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study, which is forthcoming in the Cardozo Law Review and available here. As a nonreligious individual, I am woefully underread in literatures addressing the nature and practice of religious tradition. But I knew that Prof. Kwall, who is not only the Founding Director of the Center for Intellectual Property Law at the DePaul College of Law but also the co-director of its Center for Jewish Law and Judaic Studies, would have something insightful to say about the intersection of religious ritual and cultural analysis that would speak to issues in which I have a particular interest. And I was not disappointed:Â Her article both provided me with a lens into a world with which I was not familiar and made that world relevant to my own work.
Any complete analysis of how law develops must consider how cultural norms affect, and are affected by, positive law. Some have argued, for example, that copyright law must reconsider what it deems to be infringement in light of widespread filetrading, sharing, and remixing; others argue that it is even more important for copyright law to maintain strict enforcement standards to curb such practices. The â€œreasonable personâ€ in tort law, to take another example, both reflects and influences norms in the particular community from which a jury or judge hails.Â To say that law is simply what is written in the U.S. Code is to engage in a particularly narrow and unhelpful interpretive exercise.
Prof. Kwall has explored this theme by focusing on a particular case study: female participation in public Torah reading. In the Jewish tradition, a young man first publicly reads from the Torah at his Bar Mitzvah, at thirteen years of age, in a minyan (i.e., in the presence of at least ten Jewish men above the age of thirteen). Women, however, are not eligible to participate in this tradition, at least in Orthodox synagogues. (Non-Orthodox synagogues permit for various types of participation in the service by women.) How did this rule develop? Prof. Kwall argues that the exclusion of women â€œis more the result of cultural sensibilities than unalterable law, a point that is not widely acknowledged in most Orthodox circles.â€ In other words, this is not a case in which the law as written is relatively clear but cultural norms have since deviated; rather, norms and practices have made more rigid what the law actually viewed as more ambiguous.
That an exclusionary policy with the force of law had its roots in a cultural tradition that developed in opposition to positive law tells us something about the nature of discourse in particular communities. Cultural traditions are, as Prof. Kwall notes, a space of contestation and negotiation. Â Continued discussion, whether through dialogue or through practice, allows cultural traditions to evolve organically and incrementally, with a parallel effect on the law that governs them. In the Jewish tradition, however, â€œthere were always boundaries of practice that the rabbis would not cross, no matter how much their discourse revealed significant differences of opinion and contestation.â€ As perceived guardians of tradition and enforcers of the law, the rabbis policed the line that the law was believed to establish, guarding against encroachment by evolving cultural norms, even as that line itself was often the result of earlier cultural norms. For example, â€œmore open-minded Orthodox rabbis who might be inclined to institute a practice in their own synagogues in which women could participate in public Torah reading fail to do so because they require the approval of an official poseq, a Jewish law authority highly regarded by all segments of the Orthodox community.â€ Thus, even where a desired practice might be welcomed by the community, the need to characterize that practice as authentic (that is, approved) thwarts evolution.
Here, then, is where Prof. Kwallâ€™s piece resonates with larger discussions in IP. In many modes of cultural production, questions of authenticity persist. Who gets to decide, for example, whether a particular screen print is an authentic Andy Warhol? The artist? An appointed board of experts? The art community? Any individual owner of a work of art? Oneâ€™s power to decide depends on whether one is invited to the debate in the first place; as Prof. Kwall writes, â€œJewish law is similar to any legal system in that the law that results in any given historical context is shaped by the voices that are allowed into the dialogue at any given time.â€ And is it possible for any of these bodies to opine on authenticity without intentionally or unintentionally being influenced by their own biases as members of the community who will be affected by the designation? The rabbis who have decreed that women may not participate in Torah reading are not simply acting as neutral interpreters of an ancient text, like judges who must claim to have no stake in the outcome of the cases before them. Rather, as members of their synagogues and of the larger Jewish community, they are aware that their own identity and membership in the community is in part defined by whether the community incorporates changing cultural norms or adheres strictly to past practices.
Prof. Kwall highlights this arena of personal contestation for the community as a whole, noting that the â€œpivotal issueâ€ concerning whether women may read from the Torah is the concept of the â€œdignity of the congregation,â€ a concept that may pit the integrity of group identity against the autonomy of the individual member. To attempt to resolve this conflict requires a sense of whether that dignity has a fixed, objective character or is instead a more Platonic concept that can adapt to changing cultural norms. Consistent with her earlier work on creativity and spirituality, Prof. Kwall advocates for what she suggests is a Dworkinian middle ground that both respects the gravity and influence of tradition but allows for creativity. The interpreter, she argues, should recognize that she is part of the tradition she analyzes, not a detached outsider; she should not seek to undermine the tradition or disregard long-held meanings even as she attempts to shift the conversation in a new direction.
The normative aspects of this provocative suggestion are what I hope Prof. Kwall will explore in future work. Should challenges to established practices always proceed incrementally, or are there instances in which a more disruptive engagement is called for? Does disruption encourage an equal and opposing force, such that progress is hard-won, or does it shake things up in a way that encourages rethinking across a community? (Here, one might invoke the commentary on the strategies advocates have used to argue for reproductive rights and marriage equality.) Is creativity still creativity if it must adhere to some extent to tradition, or â€“ as many copyright scholars have suggested â€“ is such adherence unavoidable (and, indeed, desirable, as some have suggested)? Prof. Kwallâ€™s article does not purport to answer these questions, but it provides a thoughtful and heartfelt contribution to the conversation. I would not have thought an article on womenâ€™s reading of the Torah would engage so directly with the issues many of us in IP are considering. Iâ€™m very happy that I had the good fortune to read it.