Defining Judaism: Religion, Law, Nation, and Our Current Moment
Leora Batnitzky
Credit: Kurt Hoffman
Leora Batnitzky is Ronald O. Perelman Professor of Jewish Studies and Professor of Religion at Princeton University and a Senior Fellow at the Shalom Hartman Institute’s Kogod Research Center.
To say that Jews and non-Jews alike are confused about the definition of “Judaism” today would be a gross understatement. Anyone who opens a newspaper, let alone anyone who looks at social media, is bombarded with conflicting accounts of the modern Jewish experience. To illustrate this confusion and lack of definition, let me harken back some six years ago to Donald Trump’s first term in office, to his December 2019 Executive Order on Combating Anti-Semitism. The New York Times described the order as “effectively interpret[ing] Judaism as a race or nationality, not just a religion, to prompt a federal law penalizing colleges and universities deemed to be shirking their responsibility to foster an open climate for minority students.”
The order was explicit about this, noting that
Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq., prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices. Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.
In recognizing that many antisemitic attacks against Jews are aimed not at their religion but at their perceived national or racial identity, the Order ostensibly increases protection of Jews from discrimination. This is how Jonathan Greenblatt, CEO of the ADL, read it: “In a climate of rising anti-Semitism, this Executive Order provides valuable guidance on anti-Semitism, giving law enforcement and campus officials an important additional tool to help identify and fight this pernicious hate.”
But other Jews read the Executive Order differently. According to the activist group IfNotNow, the Executive Order “is not about keeping Jews safe. It's just more antisemitism.… The order defines Judaism as a ‘nationality,’ promoting the classically bigoted idea that American Jews are not, well, American.”
While Greenblatt lauded the Order as contributing to Jewish security in America, IfNotNow criticized the Order as a threat to Jewish safety in America. For the latter, the suggestion that Jews are bound by “national origin” implies that Jews are not fully American, which is an antisemitic trope. Notice that these responses also reflect different ideas about American identity. Does being American mean that, despite one’s historical origins, one is no longer tied to any other collective identity, or does American identity allow, and perhaps even promote, continued identification with more than one collective?
Strikingly, the most remarkable thing about Trump’s 2019 Executive Order and the Jewish reactions to it is that it is not remarkable at all. It would not be an exaggeration, in fact, to suggest that since 2019, and especially since Oct. 7th and the war in Gaza, debates about how to define Judaism have become commonplace among Jews and non-Jews alike. Under what categories do we or ought we imagine Judaism today in America specifically? By “Judaism” here, I include not just a set of ideas of and practices but also Jews and Jewishness itself. (Here the German Judentum is helpful since it may be translated alternatively as Jews, Jewishness, or Judaism; it’s like the Hebrew yahadut). Is Judaism only a religion or also a nationality? Is Jewishness a matter of individual identity, and therefore about individual conviction, or does Jewishness imply a collective identity revolving around shared cultural and behavioral norms, and perhaps even special relationships with, and even obligations to, other Jews?
Once we have defined Judaism for ourselves, we must consider how we define it for others. What do American Jews gain by characterizing Judaism as a “religion” or a “faith” that exists alongside other “religions” or “faiths” in a pluralistic society? What do American Jews leave out when they describe their Jewishness in terms of faith only? Does the category of “religion” capture the scope of Jewish practices and ways of living in the world?
The different categories and words we use to describe Judaism today have histories, and these histories help us better understand why debates about defining Judaism continue to this day as well invite us to consider whether we might imagine things otherwise. Perhaps there is no better example than the history of the Hebrew word dat. The current edition of the Even-Shoshan Hebrew Dictionary and the Hebrew version of Wiktionary define dat in terms of faithfulness, emunah. Yet in its origins, and up until the early modern period, dat mostly meant law and only sometimes meant faith. We find a record of the changing definitions of dat in Eliezer Ben Yehuda’s dictionary of the Hebrew language, published first in 1908. Ben Yehuda’s dictionary was a groundbreaking attempt to modernize the Hebrew language by collecting words from Jewish literatures from the Bible to his present day and cataloging their historical usages and contemporary meanings. There, he notes that dat means “decrees and ordinances of the kingdom,” “laws and customs that were fixed in accordance with God’s commandments,” and “faith and knowledge of God.” How did we get from there to here, that is, from religion and law to only religion?
Dat is a loanword from Persian, and it appears in the biblical books of Daniel, Ezra, and Esther. In these texts, dat refers to multiple types of law, including the laws of the king and the laws of the Jews. For instance, we read in the book of Esther:
And Haman said unto king Ahasuerus: “There is a certain people scattered abroad and dispersed among the peoples in all the provinces of your kingdom; and their laws (dateihem) are different from those of every people; they neither keep the king’s laws (datei hamelekh); therefore it does not profit the king to suffer them.” (3:8)
Dat appears only occasionally in rabbinic literature, though you may recognize the word from the traditional Jewish wedding ceremony. Recited during the ring exchange under the chuppah, a groom typically makes this vow to his bride: Harei at mekudeshet li betaba’at zo kedat Moshe v’Israel—translated as, “By this ring, you are consecrated to me in accordance with the laws of Moses and (the people of) Israel.”
Dat becomes more prevalent in medieval Jewish philosophical texts, especially in the Hebrew translations of books written originally in Judeo-Arabic. Dat is the Hebrew translation of the Arabic term din, which connotes both true beliefs and law. The translation of the subtitle of the Jewish poet and philosopher Yehuda Halevi’s Kuzari, published around 1139-1140, is an interesting case in point for appreciating the double meaning of dat as true beliefs and law. The subtitle of Halevi’s Kuzari is “the refutation and defense of the despised dat”(din, in the original Judeo-Arabic). Dat is usually translated into English as “faith,” but “faith” does not capture the thrust of Halevi’s claim, which presents the despised dat as encompassing not merely faith, or belief, but action. Indeed, that dat includes both faith and behavior (or religion and law) is the very premise of Halevi’s philosophical treatise, which begins by recounting a dream of the king of the Khazars in which an angel appears and tells the king that his ways of thinking are pleasing to God but his ways of acting are not. Halevi’s Kuzari is an argument for the fundamental tie between what we call today “religion” and “law.” The tie between the two is referred to as dat.
For anyone familiar with Jewish texts and historical practices, the fluidity of the term dat makes sense, because collective Jewish practices (otherwise known as law) go hand in hand with a whole variety of beliefs about those laws, God, and the world (often referred to as religion). But something changes in the early modern period, and dat comes to refer only to belief, and not law. Much of the story of modern Judaism can be described as exactly this movement from the multiplicity of meanings found in dat as it was historically conceived to the one meaning of dat as referring to religion, and more specifically to religious belief. Put another way, what we see in this brief history of the term dat is an important marker of modernity: the insistence on an absolute distinction between the category of law and the category of religion. Eventually, this division became tied to a strict separation between the categories of religion and nation, and ultimately between religion and state. And it is the insistence of this division that leads to what appears to be a necessary choice between defining Jewishness in either religious or national terms, but not both.
Benedict de Spinoza’s Theological-Political Treatise, published anonymously in 1670, distinguishes the categories of “religion” and “law” in a way that continues to circumscribe debates about the definition of Judaism to this day. In keeping with the assumptions of the Christian audience to which he wrote, Spinoza equates Judaism with the laws of the Hebrews (i.e., the Jews) found in the Bible. But he contends that these laws were only pertinent in their ancient Mosaic commonwealth. With the loss of Jewish sovereignty, Spinoza writes, Jewish law has no meaning. Spinoza characterizes law generally as “a rule for living whose only purpose is to protect life and preserve the country.” He distinguishes between law—delimited to the sovereign state—and true religion that demands only knowledge and love of God. For Spinoza, since Jewish law only existed for the purpose of the functioning of the Mosaic state, it qualifies neither as religion, which he defines in terms of inner piety, nor as law, since it is no longer tied to a sovereign political order.
The key word in Spinoza’s definition of law is “only”—the only purpose of law is to protect life and preserve the country. Let me contrast this “only” with Moses Maimonides’ earlier conception of dat, which brings with it a claim about a much more expansive purpose of law. In the late twelfth-century Guide of the Perplexed, Maimonides uses dat (din in the original Judeo-Arabic) to refer to law and belief. He characterizes “Torah” in a similar twofold way. As he famously put it:
The intention (or purpose, kavanah) of the law (Torat Moshe Rabbeinu, the Torah of Moses our teacher) is two things: the welfare of the soul and the welfare of the body. As for the welfare of the soul, it consists in the multitude’s acquiring correct opinions.… As for the welfare of the body, it comes about by the improvement of their ways of living with one another.… This cannot be achieved in any way by one isolated individual. For an individual can only attain all this through a political association, it being already known that man is political by nature.
His point is that the Torah of Moses contains law (the welfare of the body) and belief (the welfare of the soul), and they cannot be detached from one another. As dat, Torahincludes both. For Maimonides, following Aristotle, the political nature of human beings renders this the case. For Spinoza, in contrast, law and politics are far more limited. Law and politics have only one purpose—the protection of life and the preservation of country.
It bears mentioning that Maimonides’s theoretical account of the political dimension of Jewish law is historically accurate. Far from having no political power, pre-modern Jewish communities were governed in large part by Jewish law, which was interpreted and applied by Jewish religious leaders who exercised political authority and power despite but also because of their complicated relation to external political authorities. From the point of view of the Jewish collectivity, the development of the modern nation-state meant the stripping away of Jewish political authority and power. Spinoza’s arguments anticipate this new reality. Yet Spinoza’s excommunication from the Amsterdam Jewish community, which occurred at least in part on the basis of Jewish law, testifies not only to the enduring, post-biblical reality of Jewish law but also to the deep tie between law and religion that his philosophical work sought to undo.
Spinoza left a major conceptual problem for subsequent Jewish defenders of Judaism. How could they possibly defend or even describe Jewish law once the concept of law was relegated only to the sovereign state? The way they have done so is simple, if somewhat counterintuitive. Rather than call into question Spinoza’s categories (“law” or “religion”), modern Jewish thinkers, from the eighteenth century until today, have accepted these distinct categories and then argued that Jewish law was not actually law but rather religion.
This may seem an obvious point to many of us today, but that is only so for two reasons: first, the success of the modern nation-state in claiming the category of law only for itself, and second, the success of a whole variety of Jewish thinkers in redescribing Jewish law as not law but religion. In the eighteenth century, Moses Mendelssohn was the first to do so in explicit terms. He maintained that Jewish law was in no way tied to the political realm, which he defined in terms of the sovereign state. Mendelssohn used the word “religion” in characterizing what he called Judaism’s ceremonial law, and he stressed that Jewish religion was different from Christian religion because it focused on practice and not dogma. The purpose of the ceremonial law was the cultivation of hearts and minds, not the regulation of communities.
In the nineteenth century, the father of Modern Orthodoxy, Samson Raphael Hirsch, despite his criticism of the term “religion,” followed in Mendelssohn’s footsteps in emphasizing how Jewish laws “guide[s] the genuine Jew, without compulsion . . . in every fiber of his heart and every stirring of his will.” So too, in the twentieth century, Joseph Soloveitchik defined halakhah as a cognitive worldview and conceptual system, and not communal governance, while Yeshayahu Leibowitz contended that halakhah concerns individual duty to God and nothing else.
Different as these thinkers are from one another, they all define Jewish law in terms of the cultivation of an internal disposition. In this, they all depart from Maimonides and Halevi (as well as a whole variety of other pre-modern Jewish thinkers) in imagining Jewish law in only religious terms. This isn’t to equate these thinkers with each other but rather to suggest that their differences are ones of degree and not of kind. Their shared approach reflects their shared political reality: living during the emergence, and then, life of modern nation-states. Whatever their ideological differences may have been, Judaism had become a religion during these years, and Jewish law had to be conceptualized as such. In Spinoza’s terms, Jewish law as religion is not “a rule for living whose only purpose is to protect life and preserve the country,” but rather an internal state of mind. We would now seem to have come full circle in our discussion of the transformation of the meaning of dat.
Markedly, however, Spinoza also left modern Jewish thinkers with a second option. In his chapter “The Vocation of the Hebrews”—the same chapter in which he claims that Jewish law could only have a political and not religious meaning—Spinoza famously writes: “I would believe unreservedly that at some time, given an opportunity, since all things are changeable, they [the Hebrews/Jews] might reestablish their state, and God will choose them again.” Beginning in the nineteenth century, many Zionist thinkers read Spinoza’s words as prophetic. Judaism properly understood was not a religion but a nation in need of a state, as Moses Hess, one of the first Zionist theoreticians and a great admirer of Spinoza, affirmed: “Nothing is more foreign to the spirit of Judaism than the idea of the salvation of the individual which, according to the modern conception, is the cornerstone of religion.” Hess’s formulation is helpful here. The separation of religion and law, which were both once contained in dat, is also the separation of the individual from the collective. Religion is the purview of the individual, law the purview of the collective.
The choice between religion or law, or between the individual and the collective, is at the heart of confusion over definitions of Judaism today. The controversy over Trump’s 2019 Executive Order, not to speak of the ongoing debate about Zionism and antisemitism over the last two and a half years, is not something new but rather reflects a dynamic put into motion by the advent of the modern nation-state. Jews and Judaism can be conceptualized under the rubric of “religion” or under the rubric of “law” (or “nation”), but not both.
It might be easy, if sadly frustrating, to conclude that we are simply stuck having to fit the messiness of Judaism and what it means to be Jewish into one of modernity’s narrow boxes. But one of the benefits of reflecting on the history of the categories that we often take for granted (like religion, law, or nation) is that we can realize that we do not in fact have to remain constrained by them. Maybe it is possible to imagine ourselves otherwise. Indeed, the possibility of imagining politics and religion anew also lay at the basis of the founding of America 250 years ago. America promised more than religious freedom for all. As a country of immigrants, America promised a polity that could, would, and should not just tolerate but also affirm the diverse backgrounds and identities of all of its citizens.
Reconceiving our categories of identity has offered American Jews a way to move forward in the American Jewish project. Strikingly, one of the most capacious proposals for how we ought to imagine Judaism in America was made about a hundred years ago at a time of heightened antisemitic and anti-immigrant sentiment, with many similarities to our own moment. In 1934, Mordecai Kaplan published Judaism as Civilization, which he wrote in response to antisemitism, and at the height of anti-immigrant animus in America. In Judaism as a Civilization, Kaplan imagined what America might offer Jews and all of its citizens that European nation-states could not. Kaplan called these more expansive forms of identity “civilizations,” and he insisted not only that Jews could and should live in more than one civilization at once but also that America was uniquely a place in which multiple civilizations could thrive:
For the Jews who live among nations which do not share their sovereignty with minorities, there has not yet been articulated any frankly avowed group category. The only group category that can render their position tenable is one that will recognize the moral and spiritual right to cultural hyphenisms.… [Religious freedom] ought to include the freedom to foster whatever other civilization besides the one of the majority, which affords consolation or supports the human spirit in the same way as does conventional religion.… Fundamentally, Catholics and Jews are hyphenates. What is needed to normalize their state is to have the cultural hyphenism of minority groups accepted as legitimate.
Kaplan’s claim that Judaism is a civilization is a claim that Judaism is not only a religion, not only a nation, and not only law, but all of these and more. But Kaplan’s claim is also about American identity itself. Remarkably, Kaplan suggests that American civilization uniquely qualifies the space taken up by the modern nation-state by making room for more expansive forms of identity that go beyond the narrow range of “religion,” “law,” and “nation.” In making his claims about Judaism as a civilization, and then about civilizations more broadly, Kaplan attempted to reconceive nationhood as more than, and not reducible to, state sovereignty. Kaplan urged us to imagine a “more ethical conception of nationhood fundamentally as a cultural rather than as a political relationship.” For Kaplan, the embrace of this more capacious conception of nationhood was as pressing for all Americans as for Jews.
In his context, Kaplan’s evocation of Catholic American identity was significant. Historically, Catholics, like Jews, were accused of dual loyalty. So too, Catholicism, like Judaism, is a religion of law, and not only belief. And Catholics, like Jews, often experience their identities in cultural as much as religious terms. In pointing to Catholic Americans, Kaplan was suggesting that Jews in America were not in fact unique. Rather, America itself is unique in enabling and encouraging the full-bodied embrace of multiple identities, or civilizations, at once. For Kaplan, America offered the promise of allowing its citizens to show up in public and private as their full selves. Americans need not deny their allegiance to other collectives to be fully American. America is to not be threatened by dual, or hyphenate, civilizations of affiliations, but rather strengthened by them. For European nation-states, national identity meant the reduction of multiple identities into one whole. But the American experiment insisted that the component parts need not be blended together. Instead, each ingredient could remain distinct while enhancing the particular expression of all others. We might imagine Kaplan’s America as a salad bowl rather than a melting pot.
I want to conclude by returning to dat one last time. Kaplan’s attempt to re-imagine Judaism as a civilization might be understood as an early twentieth-century return to medieval Jewish conceptions of dat. Kaplan’s conception of Judaism as a civilization gives modern voice to the unavoidable connection between the individual and the collective, and between belief and practice, that is at the heart of medieval Jewish conceptions of dat. As Kaplan recognized, the task is not to return to the past but to broaden our imaginations for a better Jewish and American future.
Like Kaplan, I’ve tried to show some of the ways in which our modern imaginations force us to tie ourselves up in knots when we try to separate the individual and the collective, belief and practice, and religion and law. Just as importantly, Kaplan teaches us that our response to the reality of antisemitism should not be to shrink our Jewish identities further into narrow, modern categories but rather to insist, for the sake of both the Jewish and American futures, that Judaism is not only, or perhaps even primarily, a modern religion but rather a whole way of life. American identity is spacious enough to house multiple forms of life. Calling for a “more ethical conception of nationhood fundamentally as a cultural rather than as a political relationship” allows us to be better American and better Jews, for it means that belonging is not a zero-sum game. This is an important message not just for Jews but for all Americans today.
