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If you yourself are not obliged to observe Kosher, or if you simply elect not to (only a minority of Jews actually do), you must have wondered from time to time: What’s the point? You can eat meat after dairy products, but you cannot consume dairy after meat? (And mixed together—a cheeseburger, for example? Perish the thought!) Chicken yes, but rabbit no? Salmon yes, but turbot no? And no caviar, confirming the suspicion that if it is good—I am told that caviar is very good—it will not be Kosher. Even vegetarians and vegans are not exempt from some strictures of Kosher if, to give but one example, the vegetables or fruits originate in the Holy Land.

I need to make at the outset one qualification and one disclaimer. The qualification pertains to Kosher observance. By observing Kosher, I do not have in mind those (many) who, for example, simply eschew pork products. That is more a cultural habit or statement than a religious act. I refer instead to those for whom Kosher observance thoroughly governs their shopping practices, kitchen organization (for instance, two sets of cooking and eating utensils), cooking, social practices (such as choice of restaurants and the delicate maneuvers involved in accepting a dinner invitation from those, Jews or Gentiles, who do not observe Kosher), and of course, eating.

The disclaimer is to remind my readers that, as is often said in jest, where there are three Jews, there are four opinions (and five political parties). What I say here is my personal view. Very few will agree with everything I say and very few will disagree with ­everything I say. But I do think that the views expressed will resonate with many.

The question “Why do Jews observe Kosher?” can be answered in many ways, not unlike the question “Why do Catholics go to Mass?” The observance may be the result of habit, social pressure, or ­something else. From a religious point of view, however, there can be but one reason to keep Kosher: because the Covenant demands it.

So, do not seek an explanation for Kosher observance in its supposed health benefits. One could observe a strictly Kosher diet that would be atrociously unhealthy—fat-laden Kosher beef is as unhealthy as fat-laden non-Kosher meat.

Even if Kosher observance were found to provide some health benefit, it would be necessary to distinguish this benefit from the laws’ justification. The prohibition on driving or being driven on the Sabbath, which forces one to walk to the synagogue, may encourage exercise and thus have a health benefit. But if I elect to walk to the synagogue for this reason, I would be negating the theological significance of Sabbath observance. I would make Sabbath observance an act of service to myself, instead of to the Almighty. The same is true for Kosher observance.

What difference, then, does Kosher observance make to the life of Jewish homo religiosus, other than by irritating all those around you and denying yourself what are reputed to be some of the most delicious dishes—such as ­Beluga Caviar, Cerdo Ibérico, Philly Cheesesteak, Chicken Kiev, and apparently endless wonderful wines? (That said, please do not get the impression that Kosher observance means culinary deprivation! Get yourself invited to a Jewish wedding.)

Imagine an earlier period in the life of the Jewish people, when Kosher observance was ubiquitous among Jews and relatively rigorous. It is obvious, and much commented upon, that Kosher would act as an impediment to one of the most common forms of sociality: sharing table. In this sense, Kosher caters to the age-old Jewish fear of assimilation. One of the most famous statements in the Gospel occurs in the Book of John, when the Jewish leadership is plotting to put Jesus to death: “If we let him thus alone, all men will believe in him: And the Romans shall come and take away both our place and nation.” Caiaphas, the Chief Priest who later presides over the Trial of Jesus before the Sanhedrin as reported in Mark and Matthew, states then in justification: “Nor consider that it is expedient for us, that one man should die for the people, and that the whole nation perish not” (John 11:50).

What was it about the teaching of Jesus that threatened the survival of the entire nation? It was not his raising of Lazarus from the dead, inviting Roman fears that he might raise an entire army. (This stupidity has been suggested by serious scholars.) No, in his conduct—not least but not only in sharing table—Jesus was perceived as obliterating that part of the law, the divine Nomos, which had the effect of preserving the Jews as a distinct people with a distinct testimony and a distinct obligation before the Almighty. If they were no longer a distinct people, as described and mandated in the Old Testament, they would have no right to distinct existence within the Roman Empire. Paul understood this point perfectly and articulated it elegantly when he stated, “There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus” (Gal. 3:28). If Jesus were followed by all Jews, that would be the end of the Jewish people.

Still more interesting is the effect of Kosher observance today. Here the exclusionary effect operates not just between Jew and Gentile, but among Jews. A Kosher-observing Jew will have the same difficulty sharing a table with a non-observant Jew as he or she would with a Gentile. In fact, the problem is much more painful and embarrassing. It does not strongly afflict the ultra-Orthodox, who have the same disinclination to mingle with nonobservant Jews as with Gentiles. But what about the so-called Modern Orthodox—those who continue to observe Kosher but want to take part in modern life and socialize fully with non-Jews and non-observant Jews? The attendant difficulties can be awkward, though in my experience many religiously committed Christians graciously anticipate these issues by asking in advance how they can accommodate the Kosher observant.

The most striking effect of Kosher observance today is its challenge to secularism. In contemporary Western society many religious persons, Christian and Jew, are reluctant to advertise their religious commitments in public. In many contexts, outward religiosity is regarded as backward, ill-mannered, or at least awkward. I recall a colleague of mine, one of the most distinguished jurists of our age, buttonholing me in a corridor and asking: “Weiler, how can such an intelligent person as yourself” (the flattery always comes before the knife is stuck in) “be religious?” He then added: “Come to think of it, most of my most intelligent friends are religious.” Kosher observance in today’s world combats the tendency among the religious to live as secular Marranos. A yarmulke or a sheitel or a star of David can identify a man or woman as a Jew. But Kosher observance forces engagement with significant religious commitment, rather than mere identity.

For many, monotheism means simply the worship of one god instead of many. But for the initiated, monotheism signifies much more than the oneness of the Lord. It signifies his transcendent nature as well. Belief in the sun as the one and only God is monotheistic. The sun is not transcendent, and its worship is thus idolatrous. The Transcendent God is neither a stone nor a river, neither the sun nor the moon. He is not of this world. We can only say what he is not. In the Old Testament view, when we try to describe such a God with human, material imagery and allusion, we inadvertently, if necessarily (for we are limited by our own humanity), compromise his transcendence.

The problem is immediately apparent. The Abrahamic God is also the God of love—a love that flows (or is meant to flow) in both directions between God and man. How can one experience a fully transcendent God, let alone love him? How can one feel the presence of the fully transcendent God in one’s life? There must be an immanent dimension to the transcendent God. It takes the form of what we call revelation, whereby the transcendence is breached, and immanence established.

But there is a problem with revelation: It is a one-off event, the knowledge of which might persist for millennia, but not the experience. And religion is not only epistemic but also, perhaps even principally, experiential. It is not about knowing that there is a God, the God, who created the world and did other amazing things thousands of years ago. It is about experiencing that God, individually and collectively, from one generation to the next in the life that one lives from day to day. The God the Jews know is the God of the Law, Torah, Nomos. Christians know God through the figure of Jesus, the Christ, his life, his ministry, his crucifixion, and his resurrection.

These different manifestations of the immanent God explain the barely concealed contempt with which many Christians and Jews regard one another’s understanding of the divine. For Christians, Judaism has remained in an earlier, more primitive religious stage, tied to ritualistic legalisms. “They circumcise their penises,” thinks the Christian, “whereas we circumcise our hearts.” Surely it is more important what comes out of a man’s mouth than what goes in. And Jews think, “Well, worshiping a truly transcendent God is tough, fit only for the Chosen few. For the rest, God had to make himself more accessible by sending a flesh-and-blood Son to be the subject of adoration and identification.” (That is the charitable view; the uncharitable view is that Christians had to invent a flesh-and-blood Son.)

But both religions have the challenge of going beyond one-time revelatory immanence to continuous experience, to maintaining not merely the memory of the revelation but the continuous presence of the revealed God in one’s life. This is achieved in a variety of ways—the Eucharist, for example, being an impressive way in the Catholic tradition.

How does the Lord become, and remain, present in everyday Jewish life? Let me first dispel one of the most common anti-Semitic tropes—that Jewish law is all about arid rituals. The moral law in both faiths is the same: “Love thy neighbour” is to be found in both Testaments, and the Ten Commandments are to be found in the Pentateuch, not to mention the prophets, from Isaiah through Amos, who privileged the ethical and moral dimension of Nomos. What differentiates the two traditions, Christian and Jewish, is that the Jewish Nomos retains the thick matrix of ritual law, of which Kosher observance is one central part, as normative and binding. Paradoxically, it is through this “arid,” mindless, irritating ritual that Judaism brings the presence of the divine into human life.

Let us highlight two features of Kosher observance, one so obvious it may have escaped your notice: Kosher observance concerns food and eating. We can survive without love and sex. Some can even live without working. But we all need to eat. There is, of course, much more to food and eating than mere keeping alive. Cookbooks are bestsellers, restaurants are more popular than theaters or concert halls. What to eat, how much to eat (the multi-billion-dollar diet industry), when to eat, where to eat, and with whom to eat are questions central to daily existence from Warsaw to New York, Madrid to Singapore.

For Jews who observe Kosher, the whole day is embedded within the matrix of Kosher practice, from breakfast in the morning to the glass of wine before bedtime. Nomos, the immanent manifestation of the transcendent God, is thus omnipresent in daily life. The divine command touches upon every meal, every bite, every invitation. And if you add to Kosher observance the rules of Shabbat observance, which have such a great impact on the world of work and career, the ritual rules governing sex (Oh, love, when was the last day of your period?), and the rules of dressing and apparel (Not this wool jacket, it is laced with linen), the ubiquitous quotidian dimensions of the human condition become imbued with the sacred. God is with you throughout the day, the week, the month, the year. Et comedent, et religionis ergo sum.

Within Judaism, this matrix is often referred to as a yoke. There is a constant temptation to free oneself from these ritualistic rules, which impinge so dramatically on our experience. There is no doubt much appeal to this, and the experience of the multitudes who have jettisoned the yoke over the centuries is often described in the vocabulary of freedom and liberation.

There is, however, another side to the freedom coin. Let us cast our minds back to the Genesis story of Eve and Adam. To every beast of the earth and fowl of the air, indeed to all living things, the Lord had “given every green herb for meat” (Gen. 1:30). Nota bene: This would include even the Tree of Knowledge, from which they presumably ate with no effect. It was only to humans that God gave liberty to eat of all growing food, “But of the tree of the knowledge of good and evil, thou shalt not eat of it.”

Several features are worth noting here:

  • It is the Genesis of Nomos—the first God-given interdiction.
  • It is an interdiction that relates to food and ­eating.
  • It is a rule that does not fall into the realm of ethics and morality—knowledge of which, later in Genesis, is said to be part of the human condition, not requiring revelation. Think of Cain, who is punished severely for his murderous act even though God never issued the command “Thou shalt not kill.” Nor does Cain plead ­ignorance.
  • It is an enigmatic and, to human understanding, arbitrary rule. Eve and Adam are not told why they may not eat that particular fruit.
  • It is a rule that applies only to humans, not to animals, who remain free to eat every green plant for food, including the fruit of the Tree of the Knowledge of Good and Evil.

In some respects, the interdiction seems a prototype of Kosher observance. It is the first link in the chain of the law, restricting human freedom: From this tree, thou shalt not eat. But it is precisely here that the other side of the coin of liberty reveals itself.

But for this one interdiction, man would be, like the beasts, slave to his appetite. Like all other living creatures, man would eat when and what and how much desire dictated—as the animals in the Garden continue to do. It is Nomos that makes man free from the slavery of his appetites and truly sovereign over them. Consider how we are enslaved to our careers and to our carnal lusts, and you will get an insight into a similar effect of the Sabbath and sexual ritual laws. They produce the same liberating result.

One of the most irritating aspects of Kosher observance is the seeming arbitrariness of its rules. We are conditioned by Kantian moral thinking to resist arbitrary norms and, in particular, heteronomous arbitrary norms. In itself, there is nothing immoral or unethical in eating the corpse of an animal that died a natural death. And yet it is forbidden by Kosher rules. This prohibition serves no discernible health or even moral purpose. One could object to the cruelty of hunting, but a natural death? Like Adam and Eve, we cannot understand the intrinsic meaning of the prohibition. We are meant to be left wondering. It is clear that no physical or material harm will ensue from our disregarding these laws. Yet it is precisely this incomprehension that produces the liberating effect. There is no earthly reason for the abstention, the check on my desire other than a different transcendental enslavement to transcendent truth, the command of the Almighty. The heteronomous nature of the interdicting rule deepens the meaning of this liberty. The interdict is not a norm issuing from another human—a parent, or a king, or a parliament (the People). Nomos issues from an authority outside of this world—that is the meaning of Transcendence in the monotheistic worldview. I enslave myself to God and so gain sovereignty over myself.

This last affirmation may lead you to think that Nomos and Kantian morality are oppositional: Nomos is heteronomous, imposed from the outside, whereas the essence of Kantian morality is self-­generated autonomy. And if so, Kosher may leave us uneasy, for it clashes with our Kantian heritage—the disdain for a non-self-generated, autonomous normativity, the contempt for behavior that is dictated merely by external authority. How can we give value, we may wonder, to a construct that, when stripped of adornment, amounts to, “I do it because I am commanded to”? Why can’t you have the cheeseburger and the milkshake? For myself, I can only say: Because my father (in heaven) says I cannot.

Abrahamic monotheism was revolutionary not simply because it honored a transcendent God, but because it taught that this God had entered into a covenant with man.

By definition, there are two parties to a ­covenant—two subjects, rather than subject and object, two sovereigns who enter autonomously and not coercively into a pact. This is banal. The only startling thing is to understand that this view underlies Abrahamic monotheism and undergirds Kosher ­observance. ­Torah, Nomos, is offered to be accepted or rejected. “The Church proposes,” in the dramatic statement of John Paul II, she never imposes. It is the essence of covenantal religion—premised on the human subject’s being a free moral agent, with the ability to choose and the responsibility to face the ­consequences of his choices.

Kosher observance is part of the covenantal worldview defining the relationship between God and man. Since the Covenant is with a corporate body, the People, it binds successive generations and endures so long as the People endure. But acceptance by each individual of the Covenant, the individual decision to remain bound by it, must, like the original collective acceptance, be autonomous, though the norms remain heteronomous and their rationale, in many cases, remains beyond our comprehension.

Freedom of religion, the most precious of our freedoms, incorporates freedom from religion, as Benedict XVI so powerfully articulated in his famous Regensburg discourses. A “Yes” to God is meaningful only if it is uncoerced and an expression of the free will of homo religiosus. Entering into a covenantal relationship with the Almighty is and must be an autonomous decision which, thereafter, accepts heteronomous transcendental norms.

Why, one may ask, would one submit to remain bound (or, for converts, elect to be bound) by such norms? One possible answer is that this choice represents a rejection of Kantian hubris. Unlike the Christian faith in the incarnated transcendent God, or the Jewish belief in Nomos as the manifestation of the transcendent Holy Blessed be He, Kantian moral reasoning amounts to the self-deification of the human subject—man and woman worshiping themselves.

It is also a view that takes its cue from one of the most remarkable conversations between God and man. In Genesis 18, we read Abraham asking God to spare Sodom if there are fifty righteous men in the city, then “bargaining down” to ten and to the proposition that under no circumstances may one punish the guilty with the innocent.

It is a moment of great daring, based on ­Abraham’s faith in God’s righteousness. It is the Copernican moment in the understanding of divine justice. The proposition, “If God commands it, it must be just” is replaced by the proposition, “If it is unjust, it cannot be God’s will.” For the Justice of the whole earth himself will not do injustice. It is a sharp reminder that Jewish Nomos, Torah, is the fusion of the ethical and universal (the inhabitants of Sodom were not Hebrews) with the ritual and ­particularistic. Like Abraham, we have a duty to protest any representation that suggests an ­unjust God. Maybe with this caveat the choice to accept the yoke of a covenant the principal content of which is the heteronomous Nomos may seem more understandable.

“Not that which goeth into the mouth defileth a man; but that which cometh out of the mouth, this defileth a man” has an intuitive and seemingly compelling logic, in the light of which Kosher observance seems not just irrational but senseless and even misguided. I would readily accept this teaching with one additional word: Not only that which goeth into the mouth . . . I hope that at least some of my readers will be persuaded that Kosher observance—as part of the rich ethical and ritual matrix of Nomos, as part of Torah through which God revealed himself to, and covenanted eternally with, the Tribes of Israel—is far from primitive but has a distinct beauty. It is a particular continuous and quotidian relationship with the transcendent God, a particular liberty through submission to him. While privately and publicly sanctifying life, it expresses a particular testimony to the Holy One, Blessed be He in this world. 

J. H. H. Weiler is University Professor at NYU School of Law and Senior Fellow at the Harvard Center for European Studies.

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